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ANALYSIS
Duty To Protect Versus Duty To Maintain
Confidentiality: When Does One Trump
the Other?
Elisa Reiter and Daniel Pollack｜ December 28, 2023
Confidentiality facilitates honest communication by assuring patients
that the innermost details of their lives, shared with their health care
providers, will remain private. Yet, nearly 50 years ago,
the Tarasoff case imposed a duty to warn on California mental health
professionals, requiring them to take reasonable steps to protect
potential victims of their clients. Numerous states followed suit.
This duty is balanced against the patient’s right to privacy under HIPAA.
In recent years, many courts have held that the duty to warn can be
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overridden by the patient’s right to privacy if the risk of harm is not
imminent or if there is no other way to protect the potential victim.
Subsequently, California was among the states that enacted legislation
establishing that all mental health professionals have a duty to protect
the public and that the duty to warn or protect takes precedence over
protecting therapist-patient confidentiality.
Not every state adheres to the concept of the duty to warn taking
precedence over the need to maintain client confidentiality.
Furthermore, successor cases to Tarasoff in some states have expanded
the duty by extending the protection to persons who may foreseeably
pose harm to persons besides a specifically threatened victim.
In 2004, the California Supreme Court held in Ewing V. Goldstein that a
psychotherapist has a duty to warn when a patient communicates a
serious threat of physical violence against a reasonably identifiable
victim. In Ewing, the threat was not communicated to the therapist by
the patient. Instead, the patient’s father advised the therapist that his son
had expressed the intent to harm himself and the son’s former
girlfriend’s new love interest. The therapist recommended in-patient
treatment.
The hospital discharged the patient over his therapist’s objection. After
being discharged, the patient killed himself and his former girlfriend’s
new boyfriend. The therapist had not seen the patient after the patient’s
father’s disclosure. The patient had never directly expressed an intention
to harm himself or third parties to his therapist. The victim’s parents
sued the therapist for failing to warn their son of the patient’s intent to
do harm:
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“The therapist moved for summary judgment on the basis of the California
duty to warn statute, which immunizes psychotherapists from liability for
any failure to warn of or to 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). The therapist argued he could not be
liable for failing to alert the police and the intended victim to danger posed
by his patient because the patient had never directly disclosed to him a
threat. The trial court granted the motion and dismissed the case because
the communication was not from the patient and therefore was immunized
under the statute.”
The Court of Appeals reversed the trial court, holding that the father’s
communication to the therapist should be construed as a patient
communication within the meaning of the statute. The California
Supreme Court refused to hear any additional appeal.
By contrast, the Medical Practices Act of Texas does not impose a duty on
physicians to warn potential victims of threats disclosed by patients. The
Texas Supreme Court’s decision in 1999 in Thapar v. Zezulka established
that a psychotherapist does not have the duty to warn third parties of a
threat of potential harm. However, the Texas Family Code mandates that
certain professionals must report abuse of children, the disabled and/or
the elderly, providing in pertinent part as follows:
“(b) If a professional has reasonable cause to believe that a child has been
abused or neglected or may be abused or neglected, or that a child is a
victim of an offense under Section 21.11 (Indecency with a Child), Penal
Code, and the professional has reasonable cause to believe that the child
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has been abused as defined by Section 261.001 (Definitions), the
professional shall make a report not later than the 48th hour after the
hour the professional first has reasonable cause to believe that the child
has been or may be abused or neglected or is a victim of an offense under
Section 21.11 (Indecency with a Child), Penal Code. A professional may not
delegate to or rely on another person to make the report. In this
subsection, “professional” means an individual who is licensed or certified
by the state or who is an employee of a facility licensed, certified, or
operated by the state and who, in the normal course of official duties or
duties for which a license or certification is required, has direct contact
with children. The term includes teachers, nurses, doctors, day-care
employees, employees of a clinic or health care facility that provides
reproductive services, juvenile probation officers, and juvenile detention or
correctional officers.”
Professionals in Texas are charged with the duty to make a report if the
professional makes a good faith determination that disclosing the
information is necessary to protect the health and safety of a minor or of
a person suffering from a disability or an elderly person. This obligation
is balanced against the duty to maintain confidentiality.
In Texas, pursuant to the Texas Health and Safety Code Section 611.002,
establishes the following duty:
“Sec. 611.002. CONFIDENTIALITY OF INFORMATION AND PROHIBITION
AGAINST DISCLOSURE. (a) Communications between a patient and a
professional, and records of the identity, diagnosis, evaluation, or
treatment of a patient that are created or maintained by a professional,
are confidential.
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(b) Confidential communications or records may not be disclosed except as
provided by Section 611.004, 611.0041, or 611.0045.
(b-1) No exception to the privilege of confidentiality under
Section 611.004 may be construed to create an independent duty or
requirement to disclose the confidential information to which the exception
applies.
(c) This section applies regardless of when the patient received services
from a professional.”
A number of states, including New York, are mandatory reporting states.
Other states, like Texas, are permissive reporting states. In New
York, Mental Hygiene Law Section 9.46 mandates reporting, and
indemnifies the mental health professional from making a good faith
report:
“(a) For purposes of this section, the term “mental health professional”
shall include a physician, psychologist, registered nurse or licensed clinical
social worker.
(b) Notwithstanding any other law to the contrary, when a mental health
professional currently providing treatment services to a person determines,
in the exercise of reasonable professional judgment, that such person is
likely to engage in conduct that would result in serious harm to self or
others, he or she shall be required to report, as soon as practicable, to the
director of community services, or the director’s designee, who shall report
to the division of criminal justice services whenever he or she agrees that
the person is likely to engage in such conduct. Information transmitted to
the division of criminal justice services shall be limited to names and other
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non-clinical identifying information, which may only be used for
determining whether a license issued pursuant to section 400.00 of the
penal law should be suspended or revoked, or for determining whether a
person is ineligible for a license issued pursuant to section 400.00 of the
penal law, or is no longer permitted under state or federal law to possess a
firearm.
(c) Nothing in this section shall be construed to require a mental health
professional to take any action which, in the exercise of reasonable
professional judgment, would endanger such mental health professional or
increase the danger to a potential victim or victims.
(d) The decision of a mental health professional to disclose or not to
disclose in accordance with this section, when made reasonably and in
good faith, shall not be the basis for any civil or criminal liability of such
mental health professional.”
The duty to warn continues to evolve. A summary of mandatory
reporting states versus permissive reporting states is maintained by the
National Conference of State Legislatures. The Tarasoff case is still
evolving, and the courts are still working to balance the patient’s right to
privacy against the duty to protect potential victims. As a result, it is
important for mental health professionals and attorneys to be aware of
the latest legal developments in this area.
Mental health professionals often opine that they are to err on the side of
preserving life when presented with a life-threatening situation. Every
mental health professional must be familiar with the pertinent laws in
their state and seek guidance from their appropriate governing board.
Further, they should confer with legal counsel to determine which duty
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is given greater weight—the duty to maintain patient confidentiality, or
the duty to warn third parties of potential harm.
Elisa Reiter, a senior attorney with Underwood Perkins in Dallas, Texas, is
board certified in family law and child welfare law by the Texas Board of
Legal Specialization. She has served as an adjunct professor at SMU. She is
also admitted to practice in the District of Columbia, Massachusetts, and
New York. Contact: ereiter@uplawtx.com.
Daniel Pollack, MSW, JD is a professor at Yeshiva University’s School of
Social Work in New York City. He was also a commissioner of Game Over:
Commission to Protect Youth Athletes, an independent blue-ribbon
commission created to examine the institutional responses to sexual
grooming and abuse by former USA Gymnastics physician Larry Nassar.
Contact: dpollack@yu.edu.
Original link: https://www.law.com/newyorklawjournal/2023/12/28/duty-to-
protect-versus-duty-to-maintain-confidentiality-when-does-one-trump-the-other/