In 2012, when an earlier version of this article appeared in Professional Case Management, the nation was still in shock following the Sandy Hook School shooting, where 26 died, most of whom were younger than 10 years. Since that time, “over 200 school shootings” (Patel, 2018) have occurred, as well as shootings in businesses and public venues, such as the 2017 Las Vegas mass shooting. Gun violence has become an everyday issue and part of our national conversation, influencing policies, elections, and laws. Along with the gun discussion, there has been a new sensitivity and long-overdue interest and concern about mental health and how mental health issues and interventions influence gun control, civil rights, and mental illness.
The Origin of Duty to Warn
The sanctity of a professional relationship cannot be overemphasized. As health professionals, we are entrusted with our clients' most personal information. It is critical that such relationships and communications are given the protection to which they are entitled. However, even in the therapy setting, the most protected area, there comes a point when information crosses the threat and danger line and when public safety or that of an individual or group of people is at risk, the law has recognized a duty to warn/protect.
It has been more than 40 years since the establishment of the so-called “duty to warn.” In 1976, the California Supreme Court, in the case of Tarasoff v. Regents University of California held,
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. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus, it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances. (17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976))
Later that year, the California Supreme Court partially reversed itself and changed “duty to warn” to “duty to protect.”
Approximately 25 years after Tarasoff v. Regents University of California, in the California case of Ewing v. Goldstein (Ca 2004), a court was caused to determine whether there was civil liability (malpractice) for failure to warn one member of a family regarding a threat made by another member of that family; the potential victim was not a patient of the therapist. The issue was the application of a statute to the unique facts of one case. In the relevant part, the statute states:
There shall be no monetary liability on the part of, and no cause of action shall arise against, any ... psychotherapist ... in failing to warn of and protect patient's threatened violence behavior or failing to predict and warn of and protect from a patient's violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims. (California Civil Code, § 43.92)
Analysis of the case reveals that the intent of the Tarasoff rule is broader that initially thought. Therefore, the ethical duty of the therapist in the Ewing v. Goldstein (Ca 2004) case included a duty to warn a known potential victim, in that case a family member.
After examining the legislative history and their intent, it was concluded that the communication from a patient's family member to the patient's therapist made for the purpose of advancing the patient's therapy is to be considered a patient communication within the meaning of Section 43.92.
In formulating its opinion, this court felt the privacy interests did not supersede the disclosure of a patient's confidence when it is necessary to avert serious physical harm to another person (Ewing v. Goldstein (2004)). This case extended mandatory reporting in the realm of mental health professionals.
When determining whether to disclose a threat, there is no need to disclose the entire content of the confidential communications, only the minimum necessary information to inform and protect a potential victim. For example, it would not be necessary to disclose the cause of one's upset, unless having that information would assist a potential victim and/or law enforcement to appropriately intervene.
Most state statutes that have codified the duty to warn do not offer any other alternative but to warn the victim. Is it enough to ask the patient, “Do you feel like hurting yourself or someone else?” Is a negative response to that question dispositive? I would suggest it is only a starting point and one must take all of the dialogue presented along with the situation from the patient's viewpoint. Good questions can inspire good answers. The client needs an opportunity to be heard so that the case manager has a framework to determine potential risks contained in the dialogue. Yes and no questions may not be the best choice here? Using words such as “what” and “how” will go much farther in inviting the client to share his or her feelings. This is where Motivational Interviewing skills can aid the case manager in demonstrating empathy and allowing the client to tell his or her story.
What Must Be reported?
If you are a licensed professional and you become aware that someone is in imminent danger, there is no question that you have duty to warn. That usually consists of a “911” call. This simple concept becomes more complicated by what state(s) in which you are licensed and the laws, rules, and regulations that apply to your practice. There is however a difference between imminent (immediate and/or foreseeable) danger and vague, nonspecific threats. “Imminent danger is an immediate threat of harm, which varies depending on the context in which it is used” (USLegal, 2016, p. 1). The law also recognizes that those who are called upon to report, whether licensed professionals or civilians, need protection when they, in good faith, report what they perceive as a dangerous situation; this is called the Imminent Peril Doctrine (USLegal, 2016). In many states, there are laws, under the Imminent Peril Doctrine, shielding reporters from civil liability (they cannot be sued) when acting in compliance with the doctrine as it exists in that particular jurisdiction.
The therapist treating James Holmes, prior to the 2012, known as the Aurora Theatre Shooter, was alarmed enough by his behavior to alert the University of Colorado's threat assessment committee. The committee chose not to pursue the issue because Holmes had recently dropped out of school. In 2015, Mr. Holmes received more than 12 live sentences (O'Niell, 2015). In retrospect, that decision looks like it may have been incorrect. Having lived through the 2007 Virginia Tech Shooting, the deputy chief of police at Virginia Tech and head of the school's threat assessment team would say the University of Colorado team was wrong (Katz, 2012). It is very easy to say what someone should have done after the fact. Such events are teaching opportunities. Unfortunately, it appears we will never know the motivation (real or imagined) of the Las Vegas Shooter, as no information was identified, and the investigation has concluded (NPR, 2018).
As one of his last acts, as President of the United States, Barack Obama created an exception to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which permits background checks for firearms permits to include a search for mental health records. He famously said, “If there's even one step we can take to save another child or another parent or another town from the grief that's visited Tucson and Aurora and Oak Creek and Newtown and communities from Columbine to Blacksburg before that, then surely we have an obligation to try” (Obama, 2012). As professionals, we need to take a step back from our fervent desire to protect client confidentiality and consider the bigger picture.
Interestingly, there has been little change in the legal structure surrounding “duty to warn,” while there has been significant development in telecommunication, telehealth, and use of remote communication. Most states have laws mandating health professionals (or specifically mental health professionals to report; or in the alternative, permitting the professional to report; National Conference of State Legislatures [NCSL], 2018). The Ethical Codes of most professionals, including physicians, attorneys, nurses, social workers, etc., include a mandate surrounding duty to warn.
Reporting Duties Beyond Imminent Danger
All professions have an innate duty to safety, both public safety and safety of the profession. Self-policing is one of the touchstones of a profession. Professional responsibility carries with it a duty to adhere to all laws, regulations, and rules, effecting professional practice (Case Management Society of America [CMSA], 2016; Commission for Case Management Certification [CCMC], 2015). Along with adherence to federal and state laws, we are bound by the Codes of Ethics and Standards of Practice of our underlying professions.
In addition, as professional case managers, we are guided by the CCMC Code of Professional Conduct (“the Code”) and directed to report bad behaviors of our fellow certificants. Under the Code, it expressly states in Standard 7, “Anyone possessing knowledge not protected as confidential that a Board-Certified Case Manager (CCM) may have committed a violation as to the provisions of this Code is required to promptly report such knowledge to CCMC” (CCMC, 2015, p. 7). In fact, there is a reciprocal reporting process between professional licensing authorities and the credentialing bodies that certify practice. Therefore, if one is a CCM and a report is received by either the state licensing board or CCMC, each will notify the other. Even if one is not CCM, it is prudent to know and follow the Code, as it is an accepted standard in the industry and consistent with the Standards of Practice (CMSA, 2016) and state law. This relationship between laws, Codes of Ethics and Professional Standards of Practice inform the public that we professionals hold ourselves to a higher standard and that we are continuously aware of our duties and responsibilities.
One example of state law specifically requiring self-reporting is from Pennsylvania, where all nurses, nurse practitioners, and certified nursing assistants must notify the State Board of Nursing of the following: pending criminal charges, criminal convictions (including a guilty plea, conviction following a trial, probation without verdict and Accelerated Rehabilitative Disposition), and disciplinary actions taken by other states/jurisdictions within 30 days of the action (PA Act 6 of 2018).
In recent years, many states have enacted “duty to warn” laws relating to the human immunodeficiency virus (HIV) status of an individual. This includes notification of sexual partners in the advent of a positive diagnosis of HIV infection. These laws vary from physicians being required to report the person's name or notify a partner. However, no state requires a health professional to investigate a patient's sexual history (Hammaker & Knadig, 2018).
Confidential Information Versus Privilege
One thing that is important to distinguish in the difference between confidential information, contained in a professional and client relationship (therapist, social worker, nurse, doctor, etc.), and privilege. The latter has to do with admissibility of information in a court of law. Confidential information is the content that is shared between the professionals, whether health related or legal, that is entitled to protection. Privilege, on the contrary, only refers to whether or not certain information, revealed or discussed within the context of the professional relationship, is admissible in a court of law.
In the law of evidence, certain subject matters are privileged, and cannot be inquired into in any way. Such privileged information ... cannot be asked about in testimony. Usually, privileges exist not because of a fear that information provided will be inaccurate but because there are public policy reasons the information should not be disclosed. (Legal Information Institute, 2018, p. 1)
In all cases, the legal privilege belongs to the client, not the professional. Not all states include nurses and social workers in the area of privileged communication (Westrick, 2014).
The Age of Digital Duty to Warn
HIPAA was never intended to interfere with professionals moving forward with their mandatory duty to warn, especially when there is a concern that the patient poses serious danger to himself or herself and other individuals. Yet, despite this fact, the topic of when to warn poses enormous confusion for case managers across disciplines and practice settings. The majority of case managers are aware of their state mandated duty to report child and adult abuse, neglect, and/or exploitation to law enforcement or appropriate authorities. Mandated duty to warn is another thing entirely for it involves concern about whether patients are in danger of harming themselves or others.
This area has become even more difficult to reconcile in the digital age, a slippery slope, especially when one takes into consideration the relaxed use of certain words and phrases in American language such as I could just kill her. The case manager must use intensified caution to be sure that the communication is verifiable and the intent of the author. These issues are not in any way simple to assess.
Imagine, your patient communicates an explicit threat of imminent serious physical harm or death to a clearly identified or identifiable victim or victims, such as a spouse, parent, employer, or specific friend. You may be notified by a family member that the patient has a firearm and has threatened to go to a local house of worship, place of employment, or public gathering to kill those in attendance. Your ethical duty in these circumstances is to contact law enforcement immediately. It is up to law enforcement, not the case manager, to properly investigate the alleged threat and take next steps. With an eye to confidentiality, one discloses only that information that is necessary to alert the proper authorities of a potential threat. That does not mean turning over your entire file or other records that you may have relate to the client. The “minimum necessary” rule applies here (U.S. Department of Health & Human Services, 2013). This becomes more difficult with the state-to-state variations on who must report and what is mandated to report.
Inconsistency of the laws across the states makes knowing the right way to proceed difficult at best. Some states have mandatory laws (you must report), whereas others have permissive laws (you could report but do not have to). The laws of several states apply to particular professional disciplines or groups only (e.g., mental health practitioners, psychiatrists). A current table of regulations by state appears on the NCSL website (NCSL, 2018).
Case managers who reside in states with either a permissive law or where there is no mandatory duty to warn legislation at all traditionally seek guidance from their requisite professional standards. The majority of these documents speak to a professional's primary responsibility to protect clients, patients, members, consumers, and the public. With the expansion of digital technology and social media, some of these scenarios have become muddier to understand. After the shooting in Parkland, FL, on Valentine's Day 2018, law enforcement agencies were overrun with emergency calls regarding threatening posts on Facebook and other social media websites. Professionals felt the urge to look up patients on social media to see whether their accounts yielded concerning threats that would call for duty to warn to be invoked.
The National Association of Social Workers (NASW, 2017) Code of Ethics Standard on Informed Consent (1.03), Section i, is clear under what situations social workers can conduct electronic searches on their clients across social media and should always obtain client consent in advance of conducting the said search, with the exception of when the search is:
- – For purposes of protecting the client or others from serious, foreseeable, and imminent harm, or
- – For other compelling reasons.
In addition, a number of nursing standards (American Nurses Association [ANA], 2015a) speak to protecting patient and public safety, including:
- – Standard 1: Assessment
- – Standard 5: Implementation
- – Standard 7: Ethics
The ANA Code of Ethics (ANA, 2015b), Provision 3, explicitly speaks to the nurse promoting, advocating for, and protecting the rights, health, and safety of the patient.
Case managers should be suspect when troublesome patient posts appear on social media; particular scrutiny is required regarding the legitimacy of the post and its intent. Hackers have become quite savvy in their ability to access client accounts and even to make changes within. They can send out “friend requests” to recipients who have no idea these requests are fraudulent. Hackers can also set up convincing counterfeit accounts, ultimately posting suicidal or threatening language. Names and identities are commonly stolen, particularly on the web, so the prudent professional will inquire. One timely phone call might save a life. The mantra of “We don't know what we don't know” comes to mind.
Long-standing industry recommendations on when to invoke a duty to report speak to case managers making sure they have clear evidence that that the patient:
- Poses a threat of violence to a third party;
- The threat of violence is foreseeable; and
The case manager should also be able to identify the probable victim(s) at issue.
Case management has been a vital part of health care for more than 25 years. Today's professional case manager is called upon to have a vast knowledge base, constantly changing and updating, at the ready. Duty to warn is an innate part of professional practice and crosses all disciplines' scopes of practice. With the advent of the digital age, these duties become more complicated. Our clients use all aspects of social media, as well as traditional methods to communicate. We, professional case managers, must be vigilant to meet their needs and avoid crisis.