1 JSSA Exploring the Ethics of Duty to Warn PRESENTED BY: VERONICA E. CRUZ, LCSW-C CRUZ AND ASSOCIATES MAY 19, 2020 Learning Objectives Extend • Extend their knowledge of the duty to warn principles and connect them to confidentiality and reporting. Demonstrate • Demonstrate an understanding of the duty to warn, including but not limited to landmark cases and the history behind this principle. Understand and apply • Effectively understand and apply an ethical decision-making model to help process and resolve the duty to warn issues. Articulate • Articulate the key elements of duty to warn and explore the responsibility the social worker has to client, profession, agency (organizational ethics) and self. 1 2
• Extend their knowledge of the duty to warn principles and connect them to confidentiality and reporting.
Demonstrate
• Demonstrate an understanding of the duty to warn, including but not limited to landmark cases and the history behind this principle.
Understand and apply
• Effectively understand and apply an ethical decision-making model to help process and resolve the duty to warn issues.
Articulate
• Articulate the key elements of duty to warn and explore the responsibility the social worker has to client, profession, agency (organizational ethics) and self.
Every organization has rules and policies. Those individuals who accept employment voluntarily agree to abide by these regulations. The NASW (2008) Code of Ethics considers this commitment to the employing organization a basic ethical obligation: “Social Workers generally should adhere to commitments made to employers and employing organizations” (3.09a) The goals and objectives of some organizations, even some social service agencies, however are not always congruent with the values of the social work profession.
Source: Ethical Decisions for Social Work Practice (Dolgoff, et al.)
.01 Scope and PurposeThe best interest of the public shall be the primary guide in determining the appropriate conduct of all individuals whose activities are regulated by the board.
A social worker has a responsibility to practice ethically by considering the potential benefit versus risk of harm to to clients when planning and delivering professional social work services, including respecting and facilitating client’s rights to make informed decisions.
“A code of ethics cannot guarantee ethical behavior. Moreover, a code of ethics cannot resolve all ethical issues or disputes or capture the richness and complexity involved in striving to make responsible choices within a moral community. Rather a code of ethics sets forth values, ethical principles, and ethical standards to which professional aspire and by which their actions can be judged.”
Tarasoff v. Regents of the University of California:
This case set the precedent ruling that psychotherapists have a duty to warn a potential victim when the professional believes there is a clear danger to a third party even if this means breeching the client’s confidence. The California Supreme Court concluded: “The protective privilege ends where the public peril begins.”
Timeline Prosenjit Poddar (voluntarily goes to outpatient treatment at the student health service at the University of California) and discloses to therapist that he intends to kill Titiana Tarasoff.
Therapist concludes that Poddar should be committed for 72 hours. He notifies the campus police both orally and in writing that Poddar is a danger.
Concerned about the breach of confidentiality, the therapist’s supervisor vetoed the recommendation and ordered all records related to Poddar destroyed.
Campus police temporarily detained Poddar and then released him on the condition that he would “stay away from that girl”
Public policy favoring protection of the confidential character of patient/psychotherapists relationship must yield in instances in which disclosure is essential to avert danger to others; the protection privilege ends where the public peril begins.
When a therapist determines, or 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. This duty may call for him (1) to warn the intended victim or (2) [to inform] others likely to apprise the victim of the danger, (3) to notify the police, or (4) to take whatever other steps are reasonably necessary under the circumstances (Tarasoff v. The Regents of the University of California, 1976)
Tarasoff I & II •Tarasoff I (1976): Stipulated that a physician or psychotherapist who has reason to relive patient may injure or kill someone to warn the intended victim. (Ruling does not require therapist to report a patient’s fantasies; instead it requires them to report intended homicide and it is up to the therapist to use good judgment.)
•Tarasoff II (1982): California Supreme Court issued a second ruling, which broadened its earlier ruling extending the duty to protect.
•Tarasoff II stimulated intense debate among the medical and legal field. (Argument over the definition of protection, nature of the relationship and the balance between public safety and individual privacy.)
Different states also vary in their requirements in regard to how the duty to protect should be discharged: warning the potential victim or someone close to the victim, notifying the police, starting proceedings, or informing mental health evaluators of the nature of the threat. Each of the alternatives may present new ethical dilemmas. Reporting to the police, for example, may fulfill the duty to protect, but the police may use this information in ways that social workers would consider unethical.
Confidentiality◦ Privacy: people’s right to decide what, if
any, information about them is shared with others
◦ Confidentiality: a professional will not reveal information to anyone that she or he has received from a client w/o the client’s informed consent (think attorney-client privilege & HIPPA)
Mandatory duty: Alabama, California, Colorado, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Puerto Rico, Tennessee, Utah, Vermont, Virginia, Washington, Wisconsin
Permissive duty: Alaska, Arizona, Arkansas, Connecticut, District of Columbia, Florida, Hawaii, Kansas, Mississippi, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Texas, West Virginia, Wyoming
No duty required: Maine, Nevada, North Carolina, North Dakota
Encourage Encourage the client to agree to a joint session with the potential victim in order to discuss the issues surrounding the threat (unless this might increase the risk).
Disclose Disclose only the minimum amount necessary to protect the potential victim and/or the public.
Seek Seek the client’s consent for the social worker to warn the potential victim.
Consider Consider asking the client to warn the victim (unless the social worker believes this contact would only increase the risk).
Consult Consult an attorney who is familiar with state law concerning the duty to warn and/or protect third parties.
❖ Become knowledgeable about the prediction ofdangerousness through ongoing training, continuingeducation activities, and reading of the relevant literature.When indicated, conduct ongoing clinical assessments ofclients that are consistent with prevailing professionalpractice standards.
❖When unsure of your assessment of a client, or of yourobligations under the law, consult with knowledgeablecolleagues, including legal experts in your jurisdiction.
❖ Be sure to address all exceptions to confidentialitywith your clients and ensure their understanding ofthese exceptions and your obligations in each of thesecircumstances through the ongoing informed consentprocess.
❖ Know the laws and regulations in your jurisdiction. Besure to review them on your licensing board’s websiteand stay current on the literature relevant to theirimplementation in your jurisdiction.
“Ethical decision making is a process….other sources of information can be consulted but the primary source should always be the Code of Ethics” (This is especially critical when you are in work setting that is not coming from your professional perspective.)
