Eye on Ethics

The Duty and Privilege to Warn and Protect
By Frederic G. Reamer, PhD
May 2016

The news on July 20, 2012 was dreadful: Wearing a helmet, gas mask, and ballistic gear, James Holmes—a University of Colorado (Denver) graduate student—tossed tear gas into a movie theater in Aurora, Colorado during the first minutes of the midnight show of The Dark Knight Rises. Armed with a shotgun, a rifle, and a pistol, Holmes had more than 700 rounds of ammunition with him. After his gun jammed, Holmes walked out of the theater and surrendered. Twelve victims died, and 70 were injured during the shooting.

On July 16, 2015, after an 11-week trial, a jury found Holmes guilty of 24 counts of first-degree murder, two counts for each of the 12 victims. He was also found guilty of 140 counts of attempted murder for the 70 people wounded and guilty of one count of possession or control of an explosive or incendiary device. In August 2015, Holmes received one life term for each person he killed, plus 3,318 years for the attempted murders of those he wounded and for rigging his apartment with explosives. 

Alongside the criminal court proceedings, a number of victims and survivors of the shootings have filed lawsuits against the movie theater, the psychiatrist who treated Holmes, and the University of Colorado. One of those lawsuits alleges that the University of Colorado psychiatrist should have placed Holmes on a psychiatric hold prior to the attack. The psychiatrist testified during the trial that Holmes confessed thoughts of homicide to her, but he never discussed specific plans. She ultimately decided that he did not meet the criteria for a 72-hour hold. The psychiatrist reportedly warned colleagues on a University of Colorado safety committee before the Aurora shooting that her patient might be a threat to others.

Shades of Tarasoff

The circumstances surrounding the Holmes case must sound eerily familiar to social workers who learned about the California Supreme Court case Tarasoff vs. Regents of the University of California during their professional education. In this well-known case, Prosenjit Poddar, an Indian graduate student at the University of California, Berkeley, began dating a fellow student named Tatiana Tarasoff. He kissed her a few times and felt he had a special relationship with her. Poddar was unfamiliar with American dating norms and felt betrayed by Tarasoff, who did not share Poddar's feelings. Because of his depression, Poddar sought counseling at the university health service. During a counseling session with Lawrence Moore, PhD, Poddar revealed his intention to get a gun and shoot Tarasoff. Moore sent a letter to the campus police requesting them to take Poddar to a psychiatric hospital. The campus police interviewed Poddar, but he convinced them that he was not dangerous. They released him on the promise that he would stay away from Tarasoff. When the health service psychiatrist in charge returned from vacation, he directed that the letter to the police be destroyed, to protect Poddar's privacy, and that no further action be taken.

Poddar moved in with Tatiana's brother over the summer while Tatiana was visiting her aunt in Brazil. When Tatiana returned, Poddar stalked her and stabbed her to death.

Tatiana's parents sued the campus police, health service employees, and regents of the University of California for failing to warn them that their daughter was in danger. The trial court dismissed the case because it concluded there was no cause of action. The appeals court supported the dismissal. An appeal was filed with the California Supreme Court.

In 1974, the California Supreme Court reversed the appellate court's decision; they held that a therapist bears a duty to use reasonable care to prevent foreseeable danger arising from a patient's or client's condition: "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. Thus, it may call for him to warn the intended victim, to notify the police, or to take whatever steps are reasonably necessary under the circumstances."

Duty or Privilege to Warn and Protect?

The Tarasoff decision, which has been cited in the James Holmes case and many other cases, is often misinterpreted. I have encountered many social workers who, having learned about the Tarasoff case, assume they have a so-called duty to warn. In fact, some do and some do not, depending on their state's law. Since the Tarasoff ruling, many states have adopted laws that address the limits of clients' confidentiality rights when social workers and other mental health professionals believe that disclosure without client consent is necessary to prevent serious, imminent, and foreseeable harm to a third party. However, only some states' laws mandate a true duty to warn. Other states permit but do not require social workers to warn. And, many states require or permit social workers to take "reasonable steps" to protect third parties from harm, which may or may not include warning a potential victim. As per the Tarasoff decision, reasonable steps may include warning the intended victim, notifying the police, or taking whatever steps are "reasonably necessary" under the circumstances.

Thus, the concept of duty to warn is often interpreted too narrowly and oversimplifies current law in the United States. It is more accurate to say that some states have established a duty to warn, some states have established a privilege to warn, some states have established a broader duty to protect, and, finally, some states have established a privilege to protect.

The practical implications are significant. In states that establish a duty to warn or protect, the bar is set high; social workers who fail to discharge their duty expose themselves to considerable risk. In states that establish a privilege to warn or protect, social workers are permitted, but not required, to disclose confidential information without a client's consent. That said, even in the latter states, social workers must meet the standard of care with regard to whether they should have disclosed confidential information to protect a third party from harm.

These conceptual distinctions are both complex and compelling. They provide yet another example of the importance of sound ethical decision-making.

— Frederic G. Reamer, PhD, is a professor in the graduate program of the School of Social Work at Rhode Island College. He's the author of many books and articles, and his research has addressed mental health, health care, criminal justice, and professional ethics.