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Eye on Ethics: Social Workers’ Duty to Protect and Warn — Evolving Standards
By Frederic G. Reamer, PhD
Social Work Today
Vol. 20 No. 1 P. 5

On July 18, 2010, Jan DeMeerleer entered the home of his former girlfriend, Rebecca Schiering, and killed her and one of her sons. DeMeerleer later took his own life. DeMeerleer had a long history of living with depression and bipolar disorder; for a number of years he had received treatment from psychiatrist Howard Ashby, MD, in Spokane, WA. According to records, over the years DeMeerleer had shared suicidal and homicidal thoughts with Ashby but had not threatened his victims.

Schiering’s mother and her surviving children sued Ashby and the clinic where he worked for medical negligence, alleging their failure to assess DeMeerleer’s homicidal risk and provide proper treatment. At the trial court level, the case was dismissed in Ashby’s favor. The plaintiffs appealed, and the appellate court overturned the lower court’s decision. This landmark case reached the Washington Supreme Court, which, in 2016, affirmed the appellate court’s decision and ruled that a psychiatrist could be liable for homicides even though the victims were not identified as targets of violence.

For social workers and other mental health professionals in Washington State, the Supreme Court’s decision was both astonishing and deeply troubling. The decision greatly expanded the professional’s traditional duty to take reasonable steps to protect identified third parties who might be harmed by clients. Although the Volk case concerned a psychiatrist, its ruling reasonably applies to other types of mental health clinicians, including social workers.

The Legacy of Tarasoff
For more than four decades, social workers have been taught about the ethical implications of the famed case Tarasoff v. Regents of the University of California, which established the national benchmark for mental health professionals’ disclosure of confidential information to protect third parties from harm. The Tarasoff case involved Prosenjit Poddar, who was receiving outpatient mental health counseling at Cowell Memorial Hospital at the University of California at Berkeley. Poddar informed his psychologist that he was planning to kill an unnamed woman (easily identified as Tatiana Tarasoff) on her return to the university from her summer vacation. No one warned Tarasoff or her family of Poddar’s threat, and he never returned to treatment. Two months later, he killed Tarasoff.

Tarasoff’s parents sued the university’s Board of Regents, several employees of the student health service, and the university police chief plus four of his officers because the Tarasoffs’ daughter was never notified of Poddar’s threat. A lower court in California dismissed the suit on the basis of immunity for the multiple defendants and the psychologist’s need to preserve confidentiality, which at the time was the widely held standard. Tarasoff’s parents appealed the ruling and, ultimately, the state’s high court held that a mental health professional who has reason to believe that a client plans to harm another individual has a duty to protect the intended victim. According to the California Supreme Court, “the protective privilege ends where the public peril begins.”

Following the Tarasoff decision, state legislatures throughout the United States passed statutes governing social workers’ and other behavioral health professionals’ duties regarding disclosure of confidential information to protect third parties. Significantly, there is no national consensus. Today, some states require behavioral health professionals to disclose confidential information to protect third parties when statutorily defined criteria are met; other states permit disclosure, but do not require it. That is a profoundly important distinction.

Even with this diversity of statutory guidelines, since Tarasoff there has been widespread understanding among social workers that disclosure of confidential information requires evidence that it would reasonably prevent serious, imminent, and foreseeable harm to a client or other identifiable person. In fact, that was the new language added to the NASW Code of Ethics in 1996 by the national task force that I was privileged to chair.

Evolving Ethical Standards
Since the mid-1990s, however, a series of national tragedies has shocked the nation’s conscience and led to intense debate about the traditional Tarasoff and NASW Code of Ethics guidelines. These and other widely publicized cases have included allegations that people with a known record of mental illness went on to commit mass murders and assaults.

• Wendell Williamson, a University of North Carolina law student, fired a rifle at people in the streets of downtown Chapel Hill, NC, killing two.

• Seung-Hui Cho, an undergraduate student at Virginia Tech, shot and killed 32 people and wounded 15 others before taking his own life.

• Jared Lee Loughner killed six people and left 14 people injured, including Congresswoman Gabrielle Giffords.

• James Eagan Holmes, a former University of Colorado graduate student, killed 12 people and injured 58 others at a movie theater.

• Adam Lanza shot 20 children and six adults at Sandy Hook Elementary School in Connecticut.

• Nikolas Cruz allegedly killed 17 people at Marjory Stoneman Douglas High School in Florida.

• Dylann Roof, a young white supremacist, was convicted of killing nine African American worshipers at a church in Charleston, SC.

Clearly, national standards are shifting related to social workers’ and other behavioral health professionals’ ethical and legal duties when they are concerned about risks to the public that clients may pose. In the Volk decision, the Washington Supreme Court overturned the trial court judge in the case, holding that the judge was in error by using the widely embraced standard set by the Tarasoff case, which requires a clinician to take reasonable precautions to protect only when a client poses a threat to an identifiable potential victim. Importantly, in 2017, the task force charged with revising the NASW Code of Ethics, on which I served, removed the longstanding expectation that social workers have evidence of an identifiable potential victim to justify disclosure of confidential information without clients’ consent to protect others from harm. According to the current standard, “The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or others” (Standard 1.07[c]; emphasis added).

One practical implication of these recent changes in legal and ethics standards is that social workers would be wise to take a close look at their current risk assessment protocols. To protect others from harm and, as well, to prevent malpractice claims and ethics complaints, social workers should do the following:

1. Conduct a thorough assessment of risks of harm to others that clients pose, including clients’ plans and means to carry out a threat.

2. Discuss with clients their plans to keep other treatment providers and members of their support network informed of known risks.

3. Become thoroughly familiar with relevant federal and state laws and NASW Code of Ethics standards concerning disclosure of confidential information to protect others.

4. Develop with the client a plan that includes more frequent contact and enhanced services, as needed.

5. Identify emergency contacts and community resources.

6. Schedule periodic repeated risk assessments.

7. When warranted, consult with colleagues about possible disclosure of confidential information.

8. Carefully document these key steps and actions.

Of course, it is vitally important that social workers recognize that the majority of people who are living with mental illness do not pose a threat to others and do not commit serious assaults and murder. Further, the majority of people who have committed mass shootings had not been diagnosed with a major mental illness. Additionally, a substantial body of research demonstrates that behavioral health professionals’ ability to predict whether an individual client will engage in violent behavior is quite limited.

Recent developments related to social workers’ duty-to-protect obligations are yet another reminder that ethical standards are not carved in stone. They evolve over time, often in response to broader cultural developments. The overarching lesson here is that it behooves social workers to pay close attention to evolving ethical standards in the profession and adjust their policies, practices, and protocols accordingly.

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