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The So-Called Duty to Warn:Protecting the Public versus Protecting the PatientWilliam F. Doverspike, Ph.D.Drdoverspike.com770-913-0506This article is part of a series of articles related to the evolution of ethics in the new millennium. The opinions expressed are those of the author and do not reflect any official policy or opinion of the GPA Ethics Committee or the State Board of Examiners of Psychologists. This article is designed to be educational in nature and is not intended to provide legal advice. The reader is encouraged to contact an attorney for legal advice regarding state laws governing professional conduct.If you suspect that one of your clients might be dangerous to someone, do you have a duty to warn anyone? What if your client discloses to you a specific threat against a readily identifiable intended victim? What if your client discloses a vague threat against a readily identifiable target with no clearly identifiable victim? What if your client specifies no one at all? What if you have no ability to control or detain your client after he or she angrily walks out of your office after making a vague threat of violence? These questions represent some of the most complex and troublesome ethical dilemmas that confront mental health professionals. Whereas the reporting of child abuse is mandated by law in all 50 states, the so-called duty to warn is more complex because the decision is usually based on the professional judgment of the therapist rather than on any clear legal statute. According to American Psychological Association (APA; 2010) Ethical Standard 4.05 (Disclosures), psychologists may disclose confidential information “to protect the client/patient, psychologist, or others from harm”(p. 7). This standard remains unchanged fromthe previous APA (2002) standard. The APA standard is permissive (“may disclose”) rather than mandatory (“shall disclose”).Although the APA standard permitsdisclosure to protect others, it does not requiredisclosures to warn others. In other words, what is often perceived as a duty to warnothers is in reality a duty to protectothers. The American Counseling Association (ACA; 2014a, p. 7) Ethics Section B.2.a. (Serious and Foreseeable Harm and Legal Requirements) states in part that “The general requirement that counselors keep information confidential does not apply when disclosure is requiredto protect clients or identified others from serious and foreseeable harm or when legal requirements demandthat confidential information must be revealed” (italics added).In contrast to the APA standard, the ACA standard permitsdisclosure to protect others when such disclosure is required(presumably by law).Also in contrast to the APA standard involving unspecified “harm,” the current 2014 version and previous 2005 version of the ACA standard use the more specific term “serious and foreseeable harm,” which itself stands in contrast to the earlier and more immediate term “clear and imminent danger” (ACA, 1995, p. 5). Although Georgia is not one of the 19states that have codified the ACA ethics into their rules and regulations(ACA, 2014b), Section 135-7-.03 (Confidentiality) of the Georgia Composite Board of Professional Counselors, Social Workers, and Marriage and Family Therapistsdoes make an allowance for “revealing the confidence of a client...where there is clear and imminent danger to the client or others, in which case the licensee shall take whatever reasonable steps are necessary to protect those at risk including, but not limited to, warning any identified victims and informing the responsible authorities.” Disclosure laws, which vary from state to state, generally come in two forms. Statutory lawsare laws that are legislated by state general assemblies and signed into law by the Governor, whereas case lawsare legal precedents that are adjudicated by appellate courts and signed by Judges. In Georgia, there
is no mandatory statutory duty to warn an identifiable third party of harm, nor is there any statutory immunity from legal liability for psychologists who make such warnings. Because Georgia is one of many states that has codified the APA (2010) Ethics Codeinto its licensing board rules, there does exist a permissive standard allowing such discretionary disclosure although this licensing board rule neither mandates such disclosure nor does it provide immunity or protection for psychologists making such disclosures. For example, under Section 4.05 (Disclosures) of Chapter 510-4-.02 (Code of Ethics) of the Georgia Rules of the State Board of Examiners of Psychologists (2004), there is a discretionary allowance for a licensed psychologist to disclose confidential information in order to “protect the client/patient, psychologist, or others from harm” (p. 6). However, licensing board standardsdo not have the full force of statutory lawbut rather represent administrative rulesunder which licensed psychologists practice. Bradley Center v. Wessner (1982)Although Georgia statutory law does not address the so-called duty to warn, Georgia does have a legal precedent as defined by case law that establishes a duty to protect identifiable third parties (Bradley Center v. Wessner, 1982a, 1982b). In Bradley v. Wessner, the Georgia Supreme Court upheld an appellate decision that determined a failure to exercise control over a potentially violent inpatient who made a clear threat toward a readily identifiable intended victim. In affirming the appellate decision below, the Georgia Supreme Court held that the Court of Appeals properly identified the legal duty in this case: Where the course of treatment of a mental patient involves an exercise of “control” over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient. (Bradley Center v. Wessner, 161 Ga. App. 576, supra, at 581, 1982a) Because the Bradley case specifically involved a hospitalized patient over whom some control presumably could have been exercised by the inpatient psychiatric hospital, the case may have limited applicability in outpatient settings where less control can be exercised by the individual practitioner. Furthermore, the case did not involve any legal duty to warn, but instead involved a duty to protect. The hospital’s duty to protect was breached by the negligent release of a dangerous patient who subsequently carried out his threat to kill a readily identifiable person. Garner v. Stone(1999)AlthoughGeorgia case law has established a legal precedent for a duty to protect, there is no statutory duty to warn, nor is there any statutory immunity for a psychologist making such a warning to a third party. In other words, although there is a legally established duty to protect a readily identifiable intended victim from imminent and foreseeable danger, there is no statutory duty to warn the victim nor is there any statutory protection from legal liability for mental health professionals who make such warnings. The absence of statutory immunity means that there is no immunity from professional liability for a psychotherapist making an unauthorized disclosure of confidential information. Although the case was never appealed and therefore never established as legal precedent, in Garner v. Stone(1999) asix person jury in a DeKalb County, Georgia, state court found in favor of a former police officer with Gwinnett County, Georgia, who sued a psychologist for