A Counsellor’s Duty to Warn

Foreseeable Victims of a Client’s Violence

George K. Bryce, BCACC legal counsel
Published in 14:1 Insights at pages 10 to 12, & 25 (Spring 2002)

In the October 1994 issue of Insights, I discussed a counsellor legal duty to disclose information about a client if the counsellor believes that the client may commit a serious, violent crime: "The Legal Duty of Clinical Counsellors to Report Violent Crimes" 6:4 Insights at 5-6. The legal principles discussed in that article were based on an important American case from 1976: Tarasoff v. Regents of the University of California. The California Supreme Court’s often-quoted statement (i.e. the Tarasoff principles) reads:

When a therapist determines, or pursuant to the standard 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, depending on the nature of the case. Thus, it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

Since 1994, the Tarasoff case has been considered or referred to in a few Canadian cases. Of potentially greater benefit, however, this landmark case has been applied and refined by a number of America courts in various circumstances, and has been the subject of useful commentary and analysis in various legal and social policy articles. (A reading list is included at the end of this article.) In light of these developments, I have been asked to revisit the issue of a counsellor’s duty to warn and, in particular, discuss what factors a counsellor should consider before exersizing that duty.

As I pointed out in 1994, a counsellor holds a separate and over-riding legal duty to notify the authorities if the counsellor believes that a child may be at risk, be this a child who is a client or a client who may harm a child. This duty was later canvassed in a two-part article published in 1999: "Reporting Suspected Child Abuse or Neglect: An Exception to a Counsellor's Duty of Confidentiality", part 1 @ 11:2 Insights at 9-10, and part 2 @ 11:3 Insights at 10-11.

There have been no changes to this statutory exemption to a counsellor’s general duty of confidentiality. But - more importantly - a counsellor must report suspected child abuse to the authorities whether or not the Tarasoff principles are applied in Canada, or how they may be applied.

A counsellor who learns that the client intends to harm or kill someone faces an obvious ethical dilemma. On the one hand, the counsellor has an ethical duty to maintain that confidence. This duty is the foundation for effective clinical practice. Disclosing client information to others without the client’s consent could cause emotional, psychological, financial or even physical harm to the client.

On the other hand, the counsellor is faced with the possibility that it will not be possible to help the client deal with or control the potential violent behaviour, and – as a result – an innocent third party could be seriously harmed if not killed by the client.

Trying to maintain client confidentiality when faced with the likelihood that the client could seriously harm someone, must be one of the most difficult situations a counsellor or psychotherapist can face. It is both an ethical and a legal dilemma.

In cases of [conflicting duties], no solution will protect the interests of all parties. One can object, and quite correctly, that breaches of confidentiality can lead to a breakdown of trust between patient and doctor, or that they can lead to harm to the patient. However, it is not sufficient to look at the objections on one side only. In many cases, someone’s interests must be compromised: the real question is not whether harm will be done, but which harm we should choose to have done.

Coughlan (1995) at 93.

Because there have been no Canadian cases that have expressly adopted and applied the Tarasoff principles in similar situations which we can now use as a guide, it may be premature to set out the factors a counsellor should take into consideration when faced with this dilemma. To further complicate the situation, while the US courts have dealt with a number of such cases, there has been a shifting of the American law in the past two decades as the Tarasoff principles have been applied in different contexts. Indeed, in some states these principles have been enshrined in legislation, thereby creating new legal foundations in those jurisdictions for the duty to protect or warn.

If a Canadian court was to now apply the Tarasoff principles in similar circumstances, it is hard to say with precision whether the court would be true to the original decision, or whether it would move the common law in Canada in some other direction. By all appearances, it is likely that the Tarasoff principles would be found to be part of Canada’s common law.

A breach of the counsellor’s duty of confidentiality to the client can be justified if it is necessary to protect the health and safety of someone who may likely be harmed by the client, even if those third parties are not specifically named. However, it is not a matter of trying to strike a balance between two possible harms; the emphasis should be on protecting the client’s privacy interest. In general terms, therefore, a counsellor should breach a client’s confidence only when there is a real risk of serious harm or death to another identifiable person.

The following are offered as questions the counsellor should consider before making their decision. Counsellors are cautioned, however, that addressing some of these questions may require consultation with or intervention by a psychiatrist. Obtaining complete answers to some of these questions may be beyond the competence or experience of some counsellors.

Some of these factors may overlap or be closely related to each other, and some may vary in importance from case to case. It may not be necessary to answer certain questions if others are adequately addressed, and the following is not necessarily the best sequence for these questions. How much emphasis should be placed on one factor over the others will depend on the particular circumstances.

1. What type of harm is being threatened? Is the client threatening serious physical or even psychological harm? Is it a threat of death?
2. What specifically is the client saying or doing when articulating or suggesting this threat? In this respect, it is not necessary that the threat be given verbally or in writing. The threat could be communicated "soundlessly yet with brutal clarity by thrusting a knife through a photograph of the intended victim."
3. In what way has the client indicated or explained how the threat will be carried out? For example, has the client described using a particular weapon?
4. When has the client threatened that the harm will occur? Will it take place immediately or in the near future? Is it planned for some future specified time or date?
5. Has the client identified where the threat would be carried out? Or described a general location or circumstance?
6. Who is the subject of the threat? Is it a specific person who is named or readily identified? Or is it anyone from an identifiable group or a general class of persons?
7. How easy is it for the client to have contact with a potential victim? For example

• Does the third party live with or near the client?
• Is the third party someone the client works with or sees on a regular basis?
• Given the nature of the threat, how easy would it be for the client to carry out that threat against someone from an identifiable group or class of persons?

Given this type of information (if it is available), the counsellor should try to assess how likely is it that the client will act and cause the identified harm. This may require the counsellor to obtain more information, such as the client’s full clinical record and the recorded observations of others, but only if time and circumstances permit. In making this assessment, the counsellor should consider specific factors that make it more likely than not that the client will carry out the threat.

1. Is the client on a pathway toward a violent act? If so, how fast is he or she moving (and where could one intervene)? For example:

• Has the client already caused the same or similar harm to others?
• If the client has a history of violence, has the level of violence been increasing?
• How much planning has taken place, even if only in the client’s mind?
• Has the client already bought a weapon? Or taken some other step that could lead to acting on the threat?
• Has the client considered but rejected alternatives to violence?
• How much insight does the client have about the situation? Is the client willing to participate in an intervention to reduce the risk?

Once these factors have been considered, and if it appears more than likely that the client will act on the threat to a third party, it may be possible in some circumstances for the counsellor to determine if the potential victim (or the authorities) have pre-existing knowledge of or are otherwise prepared to deal with the threat, such that it would not be necessary for the counsellor to breach the duty of confidentiality.

1. Is the third party (or an authority) already aware of this or a similar threat from the client? Have they already taken protective action in relation to this or a similar threat? What evidence does the counsellor have of these measures?

   If, after considering these and similar questions, the counsellor decides that, in the interest of public safety, a duty to protect must supercede the duty of confidentiality, the counsellor should act in such a way that the breach of the duty of confidentiality is as minimum as possible. Therefore, it becomes necessary to consider how to protect the third party.

2. Would simply giving a warning be sufficient in the circumstances? Or should the counsellor first take other steps to try to protect the third party at risk? Or should some combination of warning and protective action be taken?
3. Would warning an identifiable person at risk be sufficient? Does the identifiable person have the capacity or ability to take protective action (e.g. contact the police themselves)? If "no", should the counsellor contact a representative of the third party or the authorities?
4. Whether or not an identifiable individual is warned, should the police or some other authority (also) be contacted? For example, if the threat is made generally to anyone riding in a subway train during a certain time, notifying the police rather than notifying the public at large is probably the only realistic way to prevent harm to others.
5. Should the warning be given orally? Or should it be communicated in writing? Or in some combination of an oral and written warning?
6. What type of otherwise confidential information should be conveyed? How much detail should be provided about the client, the nature of the threat and the possible victim so that actions can be taken to protect the third party?

   It may be that an open and frank discussion with the client about the counsellor’s duty to warn may have therapeutic benefit, and strengthen rather than weaken the counsellor-client relationship. It may even be beneficial if the client was to participate in or take the lead in some sort of (supervised) protective action, such as warning an identifiable potential victim. Therefore, the counsellor should also consider:

7. Would the client consent to the counsellor taking protective action, such as giving a warning to a third party or the authorities concerning the client’s potential to cause serious harm? Or would the counsellor’s disclosure to the client of a pending breach client confidentiality not be appropriate or necessary in the circumstances?

Space does not permit an exhaustive discussion of these factors or how they could be aplied in different circumstances. However, if a counsellor asks these and similar questions and – more importantly – documents the answers, that record should provide the counsellor with the basis for a defense if – sometime in the future – either the client or a third party was to sue the counsellor for civil damages. The more concerned the counsellor is for the potential of serious violence against others, the more complete the risk assessment of the client and the documentation should be.

It is unlikely the court will expect the counsellor’s risk assessment to be accurate, as predicting the future is a notoriously difficult task for anyone. In a malpractice action against the counsellor, the quality and thoroughness of an assessment of a client’s risk to third parties would be a primary determinant, rather than whether or not the prediction was accurate. "[A] competent but incorrect finding will not lead to legal liability." However, in a situation where a client seriously harms or kills a third party and that harm could have been avoided by the counsellor’s actions or warning, a counsellor’s failure to consider or document these types of factors could result in a finding of liability.

Recent trends in Canadian common law suggests that a legal duty to protect or warn exists within out common law. In summary, in certain situations a counsellor will have to breach the duty of confidentiality owed to clients so as to prevent an imminent risk of serious physical or psychological harm, or death to an identifiable person or group.

This article tries to provide counsellors with guidance for those, hopefully rare, situations when they have to make this difficult decision (other than in relation to suspected child abuse, when the statutory duty to report takes precedence). Rather than make this difficult decision in isolation, however, a counsellor may want to discuss these questions with a peer if not also involve a psychiatrist. A consultation with a lawyer may also be well worth the investment.

The following are useful articles for more details regarding the Canadian and US perspectives on the duty to warn:

• Borum, R. & M Reddy, "Assessing Violence Risk in Tarasoff Situations : A Fact-Based Model of Inquiry", 19:3 Behavorial Science and the Law at 375-386 (2001);
• Coughlan, S.G. "Patients’ Secrets and Threats to Third Parties: Where to Draw the Line", 15:4 Health Law in Canada at 91-96 (1995);
• Ferris, L.E. et al, "Risk Assessment for Acute Violence to Third Parties", 42 Canadian Journal of Psychiatry at 1051-1060 (1997);
• Ferris, L.E. "In the Public Interest: Disclosing Confidential Patient Information for the Health or Safety of Others", 18:4 Health Law in Canada at 119-126 (1998);
• Ferris, L.E. et al "Defining the Physician’s Duty to Warn…" 158 Canadian Medical Journal 1473 at 1476 (1998);
• Gutheil, T.G. "Moral Justification for Tarasoff-Type Warnings and Breach of Confidentiality: A Clinician’s Perspective", 19:3 Behavorial Science and the Law at 345-354 (2001);
• Sestito, J. "The Duty to Warn Third Parties and AIDS in Canada", 16:3 Health Law in Canada at 83-97 (1996);
• Walcott, D.M. et al "Current Analysis of the Tarasoff Duty: an Evolution toward the Limitation of the Duty to Protect", 19:3 Behavorial Science and the Law at 325-343 (2001).