Social Workers and “Duty to Warn” State Laws

1 Social Workers and Duty to Warn State Laws Introduction Social Workers often inquire about their duty to report threats of harm that they learn about in the course of a professional relationship with a client. A prior LDF Legal Issue of the Month article, Social Workers and the Duty to Warn, reviewed court decisions that have addressed this topic; however, many states have passed duty-to-warn legislation and the specific contours of the duty to warn are defined on a State by State basis. This Legal Issue of the Month article focuses on the State statutes relating to the Social Workers duty to warn. Background Tarasoff v. Regents of the University of California (1976) is the landmark case that established the duty to warn in California and its reasoning has been applied to establish a duty to warn in states across the country.

2 Generally, a therapist s duty to warn is based on what the courts view as a special relationship established between the treating clinician and the patient who is in need of mental health treatment. By accepting responsibility for the care of a client in need of mental health treatment, the clinical Social worker may owe a duty to protect third parties from harm threatened by the client. The court in Tarasoff found, When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger (Tarasoff, 1976, p. 340). Generally, the duty applies to situations where the client identifies himself as the potentially dangerous person. Thus, it would not generally apply where a client discloses in therapy that a third party intends to harm another third party.

3 Duty to Warn State Variations Mandatory Duty to Warn Many Social Workers are unaware that duty to warn laws vary from State to State and that a few states have not established a statutory duty to warn. Twenty-two states have statutes applicable to Social Workers that establish a mandatory duty to warn. These are: Arizona, California, Colorado, Delaware, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, Ohio, Tennessee, Utah, Virginia, and Washington. A number of these states also have court decisions that have interpreted the duty to warn laws. Permissive Standard A second group of states give permission in State statutes for Social Workers to warn of serious threats. These states are: Alaska, Arkansas, District of Columbia, Florida, Hawaii, Iowa, Mississippi, Missouri, New Mexico, New York, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Texas, Virgin Islands, West Virginia, and Wyoming.

4 In some states, such as Texas, the permission to warn is limited to notifying medical or law enforcement personnel, not the threatened person or persons. No Statutory Standard A third set of states does not provide any statutory language for Social Workers addressing the duty to warn, but some of these have implemented the duty through court decisions. Connecticut, Pennsylvania, Vermont and Wisconsin do not have statutory provisions, but have established a duty to warn through court decisions. States that are silent as to the Social worker s duty to warn are Georgia, Kansas, Maine, Nevada, North Dakota, and Puerto Rico. A small number of states have statutory language or court decisions that may be interpreted as limiting the duty to warn. These include: Alabama (King v. Smith, 539 262 (1989), Guam (statute) and North Carolina (Gregory v.))

5 Kilbride, 150 601 (2002)). Type of Threat and Duty States that have established a duty to warn also vary as to what type of threat triggers the duty. Some states require or permit a disclosure of confidential information to prevent a general threat to the public at large ( Wisconsin, Delaware, Washington, Nebraska) (NASW, 2005), while other states require or permit disclosure based only on the basis of a threat to harm a specific individual or group of individuals ( Arizona, Colorado, Louisiana, Michigan, Missouri, Vermont and New Jersey) (NASW, 2005; Polowy and Gorenberg, 1997). The attached chart ( Type of Threats that Trigger the Duty to Warn ) indicates how State statutes have identified the events that may trigger a duty to warn. The necessary actions required to discharge the duty to warn also vary from State to State .

6 For example, in California (2007) the duty is discharged when the therapist makes reasonable efforts to communicate the threat to the victim and to law enforcement while Delaware law (2007) provides that the therapist may notify law enforcement and the victim or arrange for the hospitalization of the patient as an acceptable means of discharging the duty to warn. Many states do not designate the acceptable mode of intervention, thus leaving the Social worker in a position of determining the most appropriate contact to prevent harm while limiting the disclosure to the smallest number of persons. Analysis and Conclusions Social Workers often have responsibility for making difficult determinations regarding the assessment and treatment of clients, including taking steps to assure their safety and that of others. Some of the key issues for clinical Social Workers to review in a case involving a possible duty to warn are.

7 Whether the client is the individual who represents a threat to self or others who has disclosed the threat and under what circumstances how much time has passed since the threat was made whether the client possesses the means and capacity to carry out the threat whether the duty to warn has been established as a mandatory requirement in State law whether the threat of harm is to a specific individual or represents a general threat to the public at large whether the criteria for involuntary commitment may apply whether the State permits disclosure of a threat even if it is not mandatory who needs to be warned to effectively discharge the duty to warn ( law enforcement, the intended target, the Department of Motor Vehicles, a treating physician, a responsible family member). Social Workers obligations to provide competent care are grounded in the ethics and standards of the profession and are recognized in State laws and court decisions.

8 Treating clients at times may encompass referring them for a higher level of care, such as inpatient hospitalization, or taking steps to warn others who may be at risk of harm by clients. Social Workers need to be aware of the legal standards in their State that pertain to the duty to warn; however, they also need to develop and maintain the professional skills necessary to make valid assessments of client dangerousness. 2014 Amendment Background: After the Aurora theater shooting in the summer of 2012, House Bill 14-1271 was added to Colorado Revised Statute 13-21-117 to prevent individuals struggling with mental health issues from seriously harming or killing themselves or others by mandating mental health professionals to break confidentiality and report individuals who express that they are a serious threat to themselves, others, or target entities.

9 In 2014, House Bill 14-1271 passed and Colorado Revised Statute 13-21-117 was amended, which meant that mental health providers became mandated to warn or protect a specific person or persons, including those identifiable by their association with a specific location or entity, against the violent behavior of a person receiving treatment from the mental health provider when the provider s patient has communicated a serious threat of imminent physical violence against a specific person or persons, including those identifiable by their association with a specific location or entity. Note: Mental Health Providers include physicians, Social Workers , psychiatric nurses, psychologists, or other mental health professionals, or a mental health hospital, community mental health center or clinic, institution, or their staff. WHAT THIS AMENDMENT MEANS FOR PROVIDERS: Providers who report threats of imminent physical violence will not have civil liability and are immune from professional discipline.

10 Providers must make judgements about imminent danger, which is impossible to do with absolute accuracy. Patients may incur harm if providers inaccurately make a report where there is no actual intent to harm self or others on the part of the patient. WHAT THIS AMENDMENT MEANS FOR PATIENTS: Patients who make threats of violent behavior will lose patient confidentiality. Individuals with serious mental health issues will be protected when they are incapable of redirecting their destructive thoughts or behaviors if they make threats. WHAT THIS AMENDMENT MEANS FOR THE PUBLIC: It increases safety for both individuals and specific locations or entities. References California Civ. code (2007). Delaware code Ann. tit. 16 5402 (2007). Polowy, C. and Gorenberg, C. (1997). Client confidentiality & privileged communications, NASW General Counsel Law Note Series.