Tarasoff--Duty to Warn

elkpark · Dec 9, 2005

Hello again! You have lots of good psych questions, Meerkat. I have been involved in Tarasoff situations a few times over the years. Typically, the decision to break confidentiality because of a perceived legitimate risk to another person is made by the treatment team as a group (with the attending psychiatrist having the final/ultimate responsibility), and the staff nurse's role is to pass on to the other members of the tx team the information about what you are hearing the client say/threaten, and under what circumstances. (I can't imagine a scenario in which it would be appropriate for a staff nurse to unilaterally decide that someone needed to be informed about something a client had said, pick up the 'phone, and violate confidentiality -- I'm not saying that because I'm concerned about anything you said in your post; just thinking out loud about this type of situation in general.)

The Tarasoff decision is an interesting issue. The legal requirements vary from state to state -- in some states, you are only obligated/allowed to violate confidentiality in regard to threats to another person's safety; in other states, the state laws also include threats to property (e.g., someone threatening to burn down a barn or someone's car). There are also a variety of ways that you can satisfy the duty-to-warn requirements, that may not involve disclosing protected information to the actual person who has been threatened (e.g., informing local law enforcement personnel), and it's important to balance the obligation to protect a threatened person against the obligation to protect confidentiality. There are many variables ... It's important to be aware of the legal specifics of the state in which you are practicing (although, typically, the psychiatrists are v. aware of this and how it applies to their inpatient and outpatient practices, since they are the ones who get sued if something goes pear-shaped).

Have you shared your concerns and observations about the statements made by your client with the treatment team on your unit, and documented them in the client's record? That is (of course) not something you would want to keep to yourself ...

Meerkat · Dec 9, 2005

Elk, you are a wealth of information!

Thank you...

Yes, I have shared the concerns with the staff. As you mentioned, I would never unilaterally make that decision. I did also share the obligation to warn with the patient herself. Strangely, her only question was, 'Well, do you have to tell HOW I'm going to kill him?"

I really didn't know the answer to that. Psych brings up so many interesting issues!

Incidentally, the patient stated she was recently raped again by the same abuser. She said that a police report WAS filed but that he has not been arrested or even questioned. The mother confirmed this. I provided her with the State Attorney's number, the Victim Advocacy number, and Rape Crisis number, and then I filed an abuse report myself with DCF since she is a minor.

This poor girl is having a major psychotic break. That reminds me, I have another question. Why, when people have audio hallucinations, are they so often the Command type of hallucination? Why are they seemingly always terribly evil voices telling them to hurt themselves or others? Do psychotic people ever have...ummm...'pleasant' hallucinations?

solagratia · Dec 9, 2005

I have had to do a few... and the doctor was never involved. (but the house supervisor ALWAYS was). The supervisors just see it as a law, and if we don't follow it, then we are liable, especially if we have in black and white that this person is making homicidal threats against someone. Elk, are we setting ourselves up for repercussions by not going through the doctors? Our doctors would probably wonder why we were asking them when we knew the law...

Meerkat · Dec 9, 2005

I have had to do a few... and the doctor was never involved. (but the house supervisor ALWAYS was). The supervisors just see it as a law, and if we don't follow it, then we are liable, especially if we have in black and white that this person is making homicidal threats against someone. Elk, are we setting ourselves up for repercussions by not going through the doctors? Our doctors would probably wonder why we were asking them when we knew the law...

Hi! I'm on the Fl gulf coast too!

elkpark · Dec 9, 2005

That reminds me, I have another question. Why, when people have audio hallucinations, are they so often the Command type of hallucination? Why are they seemingly always terribly evil voices telling them to hurt themselves or others? Do psychotic people ever have...ummm...'pleasant' hallucinations?

Yes, plenty of people have "pleasant" hallucinations -- but they are less likely to seek out help for them, and much less likely to end up on an inpatient psych unit than the people having destructive, command hallucinations. Remember that, as a staff nurse on an acute inpatient unit, you are seeing a "skewed" population -- only the portion of the mentally ill population that gets hospitalized! Many (probably most) people with acute or chronic psych dxs never get hospitalized ...

I can only speak from my own experience, but I've never worked anywhere, either as a staff nurse or as the psych CNS, where decisions about breaking confidentiality in a duty-to-warn situation or notifying DSS about child abuse allegations were made without the entire treatment team being involved in the decision, and, typically, the social worker is the "designated reporter" -- the person who actually makes the telephone call and does the reporting, once the team has agreed that a report needs to be made. But I'm sure there are facilities out there where things are done differently. I can't imagine any psychiatrist I've ever known/worked with being okay with the idea of the nursing staff taking upon themselves (even a house supervisor) to disclose confidential information about a patient for whom the psychiatrist is responsible ... And, yes, unless the state law specifically provides protection/exemption for reporters (which I find v. hard to imagine), you could be opening yourself up to HIPAA violation charges and/or civil litigation, depending on the specifics of the situation. That's why psychiatrists and psychotherapists take duty-to-warn situations very seriously and are very cautious about making the decision of whether or not to report.

There are "homicidal threats" and then there are "homicidal threats" (who among us has not said about someone, at some time, "I'm going to kill him/her!!") I see making a determination about how serious a client is about threatening harm to someone else as the same level of nuanced decision-making as diagnosing a person in the first place, and feel strongly that the "final call" on that should be made by someone who is trained, credentialed, and licensed to diagnose -- esp. when we're talking about violating confidentiality and releasing protected information. But that's just my opinion. I'm sure lots of facilities handle these situations in lots of different ways.

solagratia · Dec 10, 2005

Thanks for the feedback, elk. Another question if you don't mind - when someone comes in, you are the initial assessing nurse, there is a true HI with a plan and means situation, and you document this, are you covered if the treatment team decides not to warn and something bad happens? I guess I see a parallel between this and the duty to report suspected child/elder abuse (which maybe there's no parallel), and passing the buck when it comes to reporting to DCF is not acceptable where I work.

So what would one need to do documentation-wise when you document real homicidal threats? Document that the doctor was notified? Would that be enough to CYA legally?

Thanks for the info!

And Meercat... are you panhandle or south FL?

Thunderwolf, MSN, RN · Dec 10, 2005

Good discussion.

beesnest · Dec 10, 2005

Regarding pleasant hallucinations- when I am stressed, or don't take the meds I'm prescribed I hear voices in the next room, or music- like a radio has been left on. In fact, in university I used to go looking for the inconsiderate rat who was playing the radio at 3am. Never did find them.

Wasn't until I'd actually gotten meds and noticed how much quieter it had gotten that I thought maybe it wasn't normal. but I had gotten through nursing school, and about 5 years of practice by the time that happened.

Before anyone lays an egg, yes, my doc knows all about this, and he works with me as a nurse regularly. I get great evaluations, am certified in my field, and am doing fine.

elkpark · Dec 10, 2005

Regarding pleasant hallucinations- when I am stressed, or don't take the meds I'm prescribed I hear voices in the next room, or music- like a radio has been left on. In fact, in university I used to go looking for the inconsiderate rat who was playing the radio at 3am. Never did find them.
Wasn't until I'd actually gotten meds and noticed how much quieter it had gotten that I thought maybe it wasn't normal. but I had gotten through nursing school, and about 5 years of practice by the time that happened.
Before anyone lays an egg, yes, my doc knows all about this, and he works with me as a nurse regularly. I get great evaluations, am certified in my field, and am doing fine.

Thank you, beesnest, for chiming in and illustrating my earlier point -- there is a wide spectrum of possibilities with the general category of "mental illness," just as there are diabetics who are only "a little" diabetic and terribly brittle, severe diabetics (and everything in between). It's easy to lose sight of that when you work on an inpatient psychiatric unit and only see the most seriously ill folks ...

As for the CYA question, I can't give you legal advice (esp. about practicing in another state!), of course. I can only say that everywhere I've ever worked, those kind of decisions were made as team decisions, with the attending psychiatrist having the final "say." The thinking was always that, since the person in question (whether a person making threats, or a child who may have been abused) is admitted to a psychiatric unit and is safe for the time being, there is no need to rush to make a snap decision and take action. I can also say that (again, I'm not claiming this is definitive legal opinion, just what I've encountered in my years of experience -- that and 50 cents will buy you a cup of coffee :) ) I've never heard (including in the mental health law course I took in grad school) any mention or discussion of anyone other than psychiatrists and psychotherapists, professionals independently licensed to evaluate and diagnose, and having primary responsibility for the client's treatment, having an obligation to report under duty-to-warn statutes. I've never heard anyone mention nurses having a responsibility to report under duty-to-warn statutues. I've never heard anyone suggest that staff nurses have any responsibility other than to pass on the information about clients making threats to the psychiatrist and other members of the tx tm (and, as you mention, I would document in the record that I had done so).

Duty-to-warn (third party) situations are very different from, say, potential/alleged child abuse situations -- in abuse situations, all (or nearly all) healthcare workers are mandated reporters and the standard is only that you suspect there may be abuse, not that you have determined for sure that there is. In Tarasoff/duty-to-warn cases, the intention (from the legislatures and courts) is that the potential risk to the third party will be carefully and judiciously balanced against the risk to the client of disclosing confidential information and damaging the therapeutic relationship and continuation of treatment, not that someone is gonna pick up the 'phone every time someone says they're thinking about killing someone.

Since we're having this little discussion, I did a little Googling, and most of the references I found (which all talked about "psychiatrists" and "psychotherapists" specifically) mentioned that the state statutes provide protection (from litigation) for reporters who act in accordance with the requirements of the statute. Again, it's just my opinion, but I would err on the side of caution and assume that, if you're not a mandated reporter under the requirements of the statute, you're not covered/protected if you release protected information. Also, none of the references were recent enough that they included any HIPAA concerns -- that would be another whole can of worms ...

I would think that your best bet would be to raise these issues with the psychiatrists you work with, and the legal counsel of the hospital/facility you work for, and get clear answers regarding the legal requirements in your state.

solagratia · Dec 10, 2005

Thanks Elk! (as to asking our docs... we've learned that they are doctors, NOT lawyers, they regularly say/do things that are contrary to the Baker Act. We have a constant dialogue with them about requirements of the law.)

elkpark · Dec 11, 2005

(as to asking our docs... we've learned that they are doctors, NOT lawyers, they regularly say/do things that are contrary to the Baker Act. We have a constant dialogue with them about requirements of the law.)

I hear ya! I've known some pretty clueless docs, myself, over the years. That's why I suggested also the hospital legal counsel -- your hospital/facility/agency is paying some attorney a heckuva lot of money to be the agency legal counsel -- you may as well take advantage of that, and let them earn some of that money. (Unless, of course, that discussion has already taken place.)