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Legal Duty

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Legal Duty

Each state has established guidelines for dealing with dangerous clients. The legal duty of the mental health provider varies. Most states mandate a “Duty To Protect” regarding professionals’ responsibility. However, other states are silent or specify other different duties depending on the discipline of the professional. The mental health provider must be aware of his/her state’s specific legal requirements. The provider can find a narrative summary of each state law at the following website:
http://www.apa.org/books/resources/dutytoprotect (Username: duty2protect Password: appendix)

The mental health provider should verify with own legal authorities to ensure the narrative summary is accurate and current for their specific state.

The provider should determine: Has a legal duty arisen?

State law and ethical responsibilities (duty-to-warn or duty-to-protect) are taken into consideration with the client’s current behavior and environment. In some states special duties exist such as Abuse or neglect of children and Abuse and neglect of disabled or elderly adults. A judgment is made if the given context arises to the legal duty mandated by the state.

• Next, the provider decides: IF “yes” and a legal duty has arisen, is a breach of confidentiality necessary?

The options include:
• No Duty
• Duty To Breach

If "Breach Confidentiality" is selected a brief checklist is provided in the Previdence "Risk Management" section.

A Breach of confidentiality has arisen. Consider the following:

• If possible - CONSULT with a peer or staff the situation.

• Determine TO WHOM information should be shared. For example, contact appropriate agency: Adult Protective Services, Child Protective Services or 911. And/or Make reasonable efforts to communicate the threat to the victim.

• Determine WHAT information should be shared. Typically, the least information possible should be shared to effectively manage the situation.

"Duty to Protect" applies to situations in which the mental health professional has a legal obligation to take action to protect a threatened third party, but the professionally usually has other options in addition to warning that person of the risk of harm, frequently including actions such as hospitalization the client or intensifying outpatient treatment. The "Duty to Protect" allows for the possibility of maintaining the client’s confidentiality, whereas the "Duty to warn" necessitates a disclosure of confidential information to the alleged victim.

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The Duty To Protect: Ethical, Legal and Professional Considerations for Mental Health Professionals. Edited by Werth, J.L. Jr., Welfel, E. R., and Benjamin G. A. H. American Psychological Association, Washington D.C. 2009; pg. 4)