Duty to Warn

Issues of Concern

A dubious position to dichotomize ethical consideration versus legal obligation places healthcare providers on a thin line that separates them as either a friend or a foe.[20] This situation is often described as a double-edged sword—if they breach confidentiality, a patient could sue, and if they fail to breach privacy and a victim is harmed, the victim could sue.[3] Healthcare providers may inevitably err on the side of caution.[18] Clinicians should comply and be concerned about possible liability for breaching the duty to warn.[18] However, these measures are classified as mandatory and permissive in different states. [2] Discrepancies and vagueness in applying the duty to protect still exist. The duty to warn may be mandatory or permissive. Sometimes, there is no duty to warn or no state position.[18] The law may be mandatory (Australia), permissive (United Kingdom), or onus provided to the patients themselves (France).[21] considerable legal and jurisdictional variability also exists between states and nations.[3] Many states have established a Tarasoff warning. However, there is wide variability in guidelines for reporting both between and within states.[5][22] 

• 23 states (Arizona, California, Colorado, Idaho, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, Ohio, Oklahoma, Tennessee, Utah, Virginia, and Washington) have statutorily mandated reporting laws.
• 10 states (Alabama, Delaware, Georgia, Hawaii, Iowa, North Carolina, South Carolina, Pennsylvania, South Dakota, Vermont, and Wisconsin) impose a duty to warn under common law.
• 11 states (Alaska, Connecticut, Washington D.C., Florida, Illinois, New York, Oregon, Rhode Island, Texas, West Virginia, and Wyoming) allow discretion under permissive duty-to-warn laws.
• 6 states (Arkansas, Kansas, Maine, Nevada, New Mexico, and North Dakota) have no guidance regarding the Tarasoff warning.[5] 

Clinicians must be well-versed in the laws specific to their practice location, as legal requirements vary significantly from state to state.[4]

There must be a foreseeable and legitimate danger to a foreseeable victim.[1][18] The best judgment to foresee if a client imposes danger following a credible threat can be made similar to an assessment of suicidal risk. The foreseeability of risk and intensification of the target should be considered in advance.[3] Foreseeable is left to the factfinder (jury or judge).[18]

Healthcare providers may have concerns regarding lawsuits, which may lead to increased involuntary commitments. However, it is important to note that in most states, the duty to warn applies only when a patient has voiced a clear threat, the potential victim is identifiable, and the danger is imminent.[5][23] Guidelines on accurately predicting and assessing dangerousness are lacking. The prediction and assessment of violent behavior currently lack reliable and clinically validated methods. Tools for violence risk assessment are not foolproof and are mainly carried out in inpatient settings. A ubiquitous method for predicting danger and applying the duty to warn directive is missing. Clinical judgment remains invaluable for determining whether the duty to protect is warranted. The Health Insurance Portability and Accountability Act (HIPAA) also advocates for healthcare providers to disclose the minimum amount of Protected Health Information (PHI) necessary to meet the goals of a disclosure.[3] Healthcare providers may seek a qualified protective order from an insurer or attorney before disclosing PHI.[3]

The principle of First, do no harm should govern the approach. [1] Keen observation, often referred to as Oslerian skill, is crucial. [20] Incorporating shared decision-making is recommended.[1] Liminality and transformational learning through informed consent is also advocated.[24] Ubuntu, an African philosophy, can be applied to protect others without necessarily breaching medical confidentiality.[25]

Clinical Significance

Therapeutic privilege does not exist in cases involving potential criminal implications, genetic medicine (ABC v St George’s Healthcare NHS Trust), and notifiable diseases. Clinicians may have a duty to care for and protect a wider group rather than simply their patients.[1] The General Medical Council justifies disclosure when required by law (crime or serious harm to a third party) or in the public interest (infectious diseases). However, disclosures should be limited to individuals with a legitimate interest, anonymized as much as possible, and restricted to the minimum necessary information.[1]

Healthcare providers treat many patients daily and, as a result, may encounter cases where ethical and legal concerns may arise. To assess the risk effectively, review the patient’s past medical records, obtain collateral information when possible, evaluate any history of violence, and consider seeking a second opinion. There are several ways to approach a patient who verbalizes threats, such as increasing the frequency of appointments, having the patient's firearms or weapons removed from their home, adjusting or initiating a medication, hospitalization or partial hospitalization programs, or involving third parties or family in the treatment.[8]  Suppose the options mentioned above do not seem feasible. In that case, it is generally recommended to disclose to the patient, if possible, that the identifiable victim or the police should receive notification of the threat.[5]

Discussing the limits of confidentiality and mandatory reporting in certain situations with patients at the time of the visit is also imperative.[8] Healthcare professionals conducting court-ordered evaluations must provide a Lamb warning to individuals, notifying them that the communication between the individual and the professional is not confidential.[10] 

Ultimately, if uncertainty remains, clinicians may consult a colleague, supervisor, or attorney, especially in the states with the permissive duty to warn or with limited legal guidance.[26][23]

The cornerstone lies in the fact that the role of clinicians extends beyond the fiduciary obligation to uphold autonomy and therapeutic privilege. Clinicians should also strive to ascertain their moral ethics under beneficence and nonmaleficence.[27]

The privileges exempting the duty of confidentiality have been nicely summarized as 5 C's, namely:

• Consent: Obtained from the patient, legalized next to the kin, or advance medical directive.
• Continued treatment: Disclosure of privileged health information, particularly for genetic disorders and hereditary cancers.
• Court order
• Comply with the law: Required in cases of child abuse or an outbreak of infectious diseases.
• Communicate a threat: Required in cases of a foreseeable act of perils.[26]

The DEAL algorithm was also suggested to address potential confidentiality issues through careful analysis of:

• Duty: Privilege obligations versus moral bounds
• Exceptions: The above-mentioned 5 C's
• Ask for help
• Legal status on the same [26]

Nursing, Allied Health, and Interprofessional Team Interventions

The obligation to serve the common good and protect public health originated in the late 19th and early 20th centuries. Initially focused on reporting infectious diseases, this obligation now includes mandatory reporting of gunshot, knife injuries, icepick injuries, and burn injuries, and the notification of sexually transmitted diseases to at-risk partners, child abuse, elder abuse, and intimate partner violence.[3] The duty to warn encompasses physical harm and harm caused by drug effects, medical illnesses, and infectious diseases.[18]

The term confidentiality is not the same as privilege. Confidentiality is an ethical principle that requires clinicians to keep patient information private. This information can only be disclosed if: 

• The patient or a legally appointed surrogate decision-maker provides consent for the information to be disclosed
• A court order is issued by a judge requesting the release of data
• The minimum necessary information must be communicated for continued treatment of the patient, such as in cases of civil commitment
• Mandatory reporting is required, such as in suspected child abuse or the Tarasoff warning.[26] 

The term privilege is a legal concept referring to a patient's right to withhold communication with their clinician from court proceedings, provided the communication is confidential and free from the presence or knowledge of third parties.[26] As a result, clinicians are prohibited from testifying in court about such communications unless the patient waives their right to privilege. However, there are several exceptions to this rule, including legal proceedings where the defendant raises the issue of their mental health, involuntary hospitalizations, and situations where a judge orders an evaluation.[10]

The Hippocratic Oath mandates that healthcare providers have the ethical duty to foster an obligation of privacy and autonomy to their treating patients.[3][1] The HIPAA also advocates ensuring that therapeutic communication is privileged. Confidentiality is paramount, and violation of the same invariably undercuts the trust, hampering the functionality of the fiduciary relationships between a healthcare provider and the patient in the future.[1] However, nonmaleficence and therapeutic privilege are not absolute and can be breached when there is a foreseeable danger to reliably identifiable third parties.[1] Confidentiality plays a critical role in patient care; however, there may be special circumstances where confidentiality must be breached to ensure the patient's safety and protect third parties. Confidentiality does not always trump obligations to others.[21][16] Therapeutic privilege cannot be a defense against negligence following failure to warn.[28] The protective privilege ends where the public peril begins.[3]