Balancing doctor-patient confidentiality against public safety is a difficult matter. There is, however, a solid legal consensus that therapists have a duty to break confidentiality to protect possible victims when they believe a patient is likely to do harm.
Care providers' "duty to warn" was articulated in the 1970s in a series of court cases involving the murder of a young woman named Tatiana Tarasoff. The man who killed Tarasoff had clearly expressed murderous intentions toward her to a therapist he was seeing at the University of California, Berkeley. Although the therapist did inform authorities, neither he nor the authorities warned Tarasoff or her parents. This omission, the California Supreme Court ruled, meant that the therapist did not fully discharge his duty to protect Tarasoff despite the presumption of privacy in the provider-patient relationship.
While a therapist or counselor is legally and ethically required to breach confidentiality when he or she believes an identifiable victim is at imminent risk, making that determination is not easy. Therapists hear all kinds of fantasies and threats. To break confidentiality, a care provider must be reasonably certain that a patient is dangerous, that potential victims can be identified, and that the patient is likely to act. Whether or not a patient has a history of violent acts is often an important factor in deciding how seriously to take a threat.
At the time of the Tarasoff case, some clinicians objected to what they considered an unreasonable intrusion into mental health care by the courts. Some have argued that patient-therapist confidentiality is sacrosanct and that breaching it will only undermine the entire enterprise of mental health care as clients lose trust in their caregivers.
Nonetheless, if a patient is clearly dangerous, it's reasonable to expect his therapist to alert possible victims and the appropriate authorities, and even to recommend that the patient be hospitalized. No one should expect therapists or counselors to prevent every crime their patients might commit. But they do have a duty to balance the need to protect patient confidentiality against the duty to protect potential victims — and sometimes the latter becomes the priority.
Arthur Caplan is the chief of medical ethics at New York University's Langone Medical Center and a cofounder of the Scattergood Program for the Applied Ethics of Behavioral Healthcare at the University of Pennsylvania, of which Dominic Sisti is the director.
