Genetic risk: the new frontier for the duty to warn.

Mental health professionals usually think of the "duty to warn" in the context of mental illness. However, two state appellate courts have endorsed a duty to warn when children of a patient may be at risk genetically for acquiring the disease of their parents. In these cases, the courts held that a physician's legal obligations extended beyond his or her patient to the patient's children. This article discusses these cases, as well as issues regarding implementation of such a duty and the implications for the physician-patient relationship in a health care environment that will be dominated increasingly by genetics issues. The article concludes that it is premature to apply a duty to warn to the treatment of mental illness and to concerns regarding future criminal behavior.     

To warn and to control: two distinct legal obligations or variations of a single duty to protect?

Prior to the Tarasoff decisions, jurisprudence pertaining to the duty to warn, or inform, to prevent violence to third persons, was separate from that pertaining to the duty to control to prevent such violence. The Tarasoff Principle consolidated preventive obligations in the face of foreseeable violence under a single "duty to protect." Even as courts adopted divergent rules for establishing foreseeability, many held to a single duty to protect with warnings as one possibility for fulfilling this option. Particularly over the past decade, courts have again disengaged the duty to warn and the duty to control, each requiring different legal predicates to occur. In recent years, courts have upheld or rejected a duty to warn, upheld or rejected a duty to control; and several courts have, within a single opinion, articulated fundamental distinctions between these two separate protective duties.     

Current analysis of the Tarasoff duty: an evolution towards the limitation of the duty to protect.

In 1976, the Tarasoff case established a new legal duty to protect third parties from a psychiatric patient's foreseeable violence. After the Tarasoff case, courts expanded the scope and role of a clinician's duty to protect, sometimes in novel ways. Later interpretations of Tarasoff began to limit significantly the situations in which a duty to protect would attach. Recent Tarasoff-type cases in which courts have rejected the clinician's duty to warn suggest that Tarasoff is declining in significance. The advent of state statutes that codify the establishment and discharge of Tarasoff duty have contributed to a further limitation of the duty to protect. Lastly, when faced with the management of dangerous patients, we advocate for a thorough, well documented assessment of risk of violence as the best means for addressing concern about potential legal liability.     

Informed consent: An overview

Over the past 25 years, obtaining informed consent for the performance of many medical procedures has become part of the practice of medicine. As opposed to the “duty to warn” that is enforced by the law, informed consent should be a cornerstone of a fully collaborative decision-making process, the elements of which are presented in this paper. The responsibility for this process rests upon health care institutions and financing arrangements, as well as upon physicians and courts. In response to emergencies, patient preferences, and public interests, the consent process is justifiably abbreviated. However, as presently articulated, the consent process treats communication too simplistically, is distorted by the way it is enforced in litigation, is inattentive to social justice issues, and is not integrated into the moral commitment of physicians.     

The prediction of violent behavior and the duty to protect third parties

A considerable theoretical, empirical, and clinical literature has accumulated on the prediction of dangerous and violent behavior. Despite the pleas of mental health professionals that the prediction of violent behavior is not clinically feasible, courts upholding a therapist's duty to protect third parties have created a legal duty to do so. The first generation of research studies of the clinical prediction of violent behavior focused on long-term predictions in offender populations, of little direct relevance to the setting of outpatient therapy with nonoffenders. More recent clinical research has centered on predictions of imminent violence in noncriminal populations, particularly in the process of involuntary hospitalization, but this reveals relatively low levels of predictive accuracy. Methodologic and ethical factors also limit the generalizability of such work. Given the likelihood that significant numbers of false positive predictions will result, especially in the low base rate population of outpatient treatment, it is suggested that therapists attempt to minimize the antitherapeutic influence of any breach of confidentiality.     

Legal and ethical duties of the clinician treating a patient who is liable to be impulsively violent

This paper reviews published tort cases that arose after a patient impulsively hurt or killed someone. Plaintiffs alleged breach of the duty to protect (Tarasoff) or negligent release from hospital. There are sixteen cases involving a variety of facts and diagnoses. As a matter of law courts typically hold that impulsive violence is not foreseeable. One jury found a defendant negligent but that verdict was ultimately overturned. Statutes on duty to protect do not imply a duty to act on the fact patterns of impulsive violence in this sample. The author concludes that the ethical duty to do careful clinical work is essentially identical to the legal duty to use due care in these cases. The law imposes no additional burden on the clinician in these cases. © 1998 John Wiley & Sons, Ltd.     

You Ought to Know Better: the Morality of Political Engagement

I argue that, from the liberal perspective, citizens have a pro tanto moral duty to cultivate and maintain a readiness to participate in politics when such an action is called for from the moral perspective—I will call it “the pro tanto duty of political engagement.” It requires a citizen to (i) monitor what the government is doing (or not doing), (ii) evaluate its actions, and (iii) learn what she can do to intervene politically. In Section 1, I will discuss some doubts on the pro tanto duty of political engagement. In Section 2, I will describe Alexander Guerrero’s account of culpable ignorance and argue from his account that the pro tanto duty of political engagement is derived from a general moral duty to properly manage one’s morally relevant beliefs. In Section 3, I will argue that to properly assess the moral significance of any government policy or policy proposal, one must learn about the lives and personal values of those who would be affected by the policy.     

Tarasoff and the Duty to Protect

Summary

The Tarasoff I and Tarasoff II cases were decided by the California Supreme Court in 1974 and 1976, respectively. These cases involved the murder of a young woman by her ex-boyfriend, who had been a patient at a University counseling center. The parents of the young woman sued, alleging negligence. Tarasoff I set forth a “duty to warn” on the part of psychotherapists. Upon rehearing in Tarasoff II, the decision was upheld but modified. The court ruled that when a therapist determines, or should have determined, that a patient presents a serious danger of violence to another, the therapist has a “duty to protect” that other person. In this article, we address subsequent cases that have arisen under the “duty to protect” doctrine, and analyze some of the legal issues that these cases have raised.     

Rotting with their rights on: why the criteria for ending commitment or restraint of liberty need not be the same as the criteria for initiating commitment or restraint of liberty, and how the restraint may sometimes justifiably continue after its prerequisites are no longer satisfied

That coerced treatment must end when the criteria for initiating coerced treatment cease to apply appears to be universally accepted by courts and commentators.2 Moreover, the consensus appears to be justified by a steel-trap argument. If coercion is justified only when the patient is mentally ill and incapable, because then the patient lacks autonomous capacities, or lacks practical reasoning abilities that undercut autonomous capacities, then these justifications have no force when the patient either is not mentally ill or is capable. A parallel claim holds for civil commitment. This received wisdom, or in = out thesis, rests upon a conceptual confusion: a failure to distinguish the criteria for initiation of intervention, those for cessation of intervention, and the purpose of the commitment or coerced treatment. If the criteria for commitment were mental illness and dangerousness, and the criteria for release were the same, then the purpose of commitment would be to restore persons to the point where they are either just barely not mentally ill, or just barely not dangerous. That is a silly and self-defeating purpose for that large class of patients who, because of lack of insight, or otherwise, do not become treatment compliant until they are substantially healthier than being barely not mentally ill or barely not dangerous. It sets them up to become revolving-door patients. The purpose of commitment is rather to maximize the patient's mental health, and minimize her dangerousness without unduly burdening her liberty. If society is going to violate a patient's liberty, it should do so in a way that will resolve the problem that justified the restriction on liberty in the first place, so long as the restriction of liberty is not too great in relation to the expected gains from the intervention. The criteria for releasing a patient from commitment are in this way responsive to the purpose of the commitment. For some revolving-door patients, this entails that the criteria for their release from commitment should be stricter than the criteria for initiating commitment in the first place. The criteria for release from commitment for revolving-door patients should be that the criteria for initiation for commitment is not met plus it being more likely than not that the patient will be treatment compliant after release, assuming the additional restriction on liberty is less than the gains from the additional restraint, and the restriction is not unduly burdensome. Spelling this out, the criteria for release should be either not mentally ill, or else not dangerous, or capable, and more likely than not to be treatment compliant after release. For those patients for whom such a test is overly optimistic, we might substitute that there is a reasonable probability of treatment compliance after release, or that the probability of treatment compliance has been enhanced. These criteria are to be thought of as rough and ready rules of thumb, and not as analytically precise tests.     

Training for Dangerous Task Performance: The Effects of Expectations and Feedback1

The training of individuals to perform dangerous tasks confronts theorists and practitioners with a critical issue: To what extent should individuals be exposed during training to stressors that characterize the conditions under which the task will eventually be performed? The present study evaluated two variables that might help resolve this dilemma. The first, a personality variable, consists of a person's generalized expectation that he or she will not be physically hurt while exposed to danger. The other, which is more sitution-specific, consists of the feeling of success or failure that the trainee experiences at the conclusion of training under physically dangerous conditions. The quality of soldiers' performance and the intensity of experienced stress were tested in a combat simulation. Individuals who tend to assign a low probability to their being physically injured in dangerous situations were found to benefit more from dangerous than from non-dangerous training. The opposite was found for individuals who assign a high probability to their being injured in dangerous situations. Moreover, exposure to serious physical threats during training yielded better training results than training that did not involve such threats only when the subjects concluded their training with a feeling of success. The subjective feelings of success or failure had no effect, however, under training conditions that did not expose trainees to danger. Theoretical and practical implications of these findings are discussed.     

Recognizing the Threat Posed by an Incestuous Parent to the Victim's Siblings. Part II: Improving Legal Responses

Many courts refuse to protect the siblings of an incest victim even when faced with unmistakable evidence that they are at risk, arguing that no one can predict what will happen. For instance, some courts believe that a parent who molests his stepchild is unlikely to victimize biological offspring, while others believe that a father who violates a daughter will not also victimize sons. Although judges have relied principally on intuition, a substantial body of empirical studies can help them to better assess a sibling's risk. In Part I, I argued that once a parent establishes the first sexual relationship, other children in the family should be considered at risk. Nonetheless, not all children in the household face identical risks of molestation. In this paper, I continue this theme and argue that a legal presumption should arise that other children are endangered. Further, I maintain that offenders should have an opportunity to rebut this presumption. Without this opportunity, a child who never faced a significant risk of abuse may be removed from his home or unnecessarily lose his ties to a parent. In order to better protect children, I outline how legal decisions can better reflect what is known about child victimization.     

Taking human life

Alan Donagan's position regarding the morality of taking innocent human life, that it is impermissible regardless of the wishes of the victim, is criticized by Brock who argues for a rights-based alternative. His argument appeals to the nature of persons' actual interest in life and gives them an additional element of control which they lack if a nonwaivable moral duty not to kill prevails. The author rejects Donagan's view that stopping a life-sustaining treatment, even when a competent patient has consented, is morally wrong and that there is no moral difference between killing and allowing to die. A rights-based position permits stopping treatment of incompetent patients based on what the patient would have wanted or what is in his or her best interest, and allows the withholding of treatment from a terminally ill person, with the patient's consent and for a benevolent motive, to be evaluated as morally different from killing that patient.     

Informed consent and the disclosure of risks of treatment: The Supreme Court of Canada Decides

The requirement for disclosure of risks of treatment as part of informed consent came before the Supreme Court of Canada in two 1980 cases. The Court found the duty of disclosure of risks to be based in negligence and not battery. The scope of the duty is not to be determined by medical evidence alone and requires the physician to disclose the nature of the proposed treatment, its gravity, any material risks and any special or unusual risks as well as answering in a reasonable way all specific questions asked by the patient. Whether the patient would have decided differently if all the information were known is an objective test, based on what the reasonable person in the patient's particular circumstance would do.     

The Tarasoff Warning and the Duty to Protect

Summary

Since the case of Tarasoff v. Regents of the University of California, mental health professionals have had an explicit legal duty to warn potential adult victims of violence. Subsequent case law expanded this standard to a broader duty-to-protect. Primary health care providers are increasingly treating psychiatric patients for whom the duty to protect is applicable. However, these providers are often unaware of the legal, ethical, and clinical issues involved. Assessment of violence risk should include demographic, psychiatric, and social dimensions. Interventions include notifying law enforcement authorities, potential victims, and possible use of psychiatric hospitalization to prevent aggressive behavior. The duty-to-protect as a standard-of-care has been applied to several other clinical situations, including impaired driving capacity, high-risk HIV behavior, and child sexual abuse. The article includes a step-by-step clinical protocol for evaluation and intervention in dangerous situations.     

Information du patient par le pharmacien en officine

The pharmacist, practicing in city pharmacy, has a duty of information of the patient, what is not easy within the framework of a sale of medicine in the presence of other customers. His duty exists that the medicine was prescribed or not, and his responsibility can be committed in both cases. These last years, the profession evolves with new perspectives as for the missions and for the role of the pharmacist. Since the law Hospital patients health territory (HPST) of 2009, in particular, the pharmacists mobilize to widen their missions with the patients so that their activity overtakes the simple dispensation of medicine. The pharmacist has to participate in the cooperation between healthcare professionals, in the mission of public service of the office of the care, in the therapeutic education and in the actions of support of the patients. So numerous novelties spread within pharmacies, either by a political will, through new regulations, or by initiatives appropriate to the pharmacists, in particular in the ordinal plan, with the pharmaceutical file.     

Potential erosion of psychotherapist-patient privilege beyond California: dangers of "criminalizing" Tarasoff.

The "dangerous patient exception" to psychotherapist-patient privilege, adopted almost a decade before the celebrated case of Tarasoff v. Regents of the University of California (1976), was mentioned in a footnote to that decision in the context of an analogy. Although intended to permit testimony in civil commitment proceedings, this exception has been used to "criminalize" the Tarasoff duty in California. California courts eroded the privilege initially primarily to permit victims to sue psychotherapists and later to require psychotherapists to testify against their patients in criminal proceedings and appear to have confused evidentiary privilege and confidentiality. If consistent, similar reasoning in California in the future should allow therapists to testify against their patients if they were civilly committed in the past for dangerousness and attorneys to testify against their clients in criminal cases if at some earlier time they believed their clients represented a risk of future harm. Although most other jurisdictions may not word their privilege exceptions for civil commitment in the same way as California, most states have some type of privilege exception for civil commitment that could allow for such an interpretation. The United States Supreme Court in Jaffee v. Redmond (1996) found a psychotherapist-patient privilege, but stated in a footnote that an exception to the privilege would exist if a serious threat of harm to the patient could be averted only by means of disclosure by the therapist. Other jurisdictions have begun to consider these issues. Rather than being unique to California, similar reasoning could lead to the "criminalization" of Tarasoff in other jurisdictions and thereby compel therapists outside California to testify against their patients in criminal proceedings.     

Strict Confidentiality: An Alternative to Pre’s “Limited Confidentiality” Doctrine

In “Advisory Opinion on Confidentiality, Its Limits and Duties to Others” the Canadian Interagency Advisory Panel on Research Ethics (PRE) articulates a rationale for a priori limitations to research confidentiality, based largely on putative legal duties to violate confidentiality in certain circumstances. We argue that PRE promotes a “Law of the Land” doctrine of research ethics that is but one approach to resolving potential conflicts between law and research ethics. PRE emphasises risks that have never materialized, and ignores jurisprudence on challenges to research confidentiality. When we examine what the courts have actually done with research-based claims of privilege, we find they clearly recognize and affirm researchers’ ethical obligations to maintain strict confidentiality and protect research participants. Ironically, the one exception – where the court ordered that information be disclosed – occurred precisely because the researchers had limited confidentiality. The passive approach PRE espouses leaves vital questions about what protecting confidentiality to the “full extent possible in law” means, and leaves the impression that academics should accept whatever limitations the courts may impose without participating in the courtroom dialogue determining where those limits are drawn. In contrast, we believe confidentiality is so important to the protection of research participants and the integrity of the research enterprise that it is worth fighting for. The “ethics-first” doctrine of “strict confidentiality” we describe adheres to the social sciences’ and humanities’ longstanding commitment to research confidentiality and duty to the research participant.     

Disquiet in the consulting room: everything/nothing that is said here is confidential

Writing from experiences in the consulting room in private practice in Australia, the author refers to the layered complexity of a conflict of ethical duty which has legal and social implications. The paper explores how the ethics that are congruent with creating a safe vas bene claustrum can be diametrically opposed to the social and legal structures and processes on which we all rely. It is suggested that within the vas, analysts and analysands engage in a shared process of emotionally connected, layered, symbolic thinking. Subpoenas directed at analysts are seeking concrete evidence that will stand up in court. The paper argues that this is a category error based on ignorance and misconceptions of what analytic work entails. The intrusion of a subpoena into the vas has the potential to cause havoc in the mental health and the lives of already vulnerable, possibly traumatized and isolated individuals. It can undermine a fundamental human right and undermine the profession of psychotherapy as a whole. The paper proposes that analysts have an ethical obligation to protect the work contained within the vas from these category errors and to educate other professionals as to why we cannot provide the kind of evidence that the courts require.     

Ethical and legal issues in e-mail therapy

Psychologists and psychiatrists recently started using electronic mail (e-mail) to conduct therapy. This article explores relevant ethical and legal issues including, among others, the nature of the professional relationship, boundaries of competence, informed consent, treating minors, confidentiality, and the duty to warn and protect. To illustrate these complex issues, two services currently operating are discussed. To address potential hazards to clients and the profession, a new ethical standard for e-mail therapists is offered.