Clarifying the 'Duty to Warn' in North Carolina

— Clinicians shouldn't be in legal jeopardy for trying to prevent violence

 A photo of a male psychiatrist listening to his male patient.
S. Polick is a psychiatrist. C. Polick is a nurse scientist. Sisti is a professor of medical ethics. Appelbaum is a professor of psychiatry, medicine, and law.

Amid rising gun violence and threats in North Carolina, including several incidents in the last few weeks alone, the state has taken important steps to protect against gun violence, the leading cause of death in children statewide. The recently launched NC S.A.F.E. (which stands for secure all firearms effectively) initiative aims to educate communities about firearm storage through social media, television, and radio advertising. Additionally, Gov. Roy Cooper (D) ordered the creation of the Office of Violence Prevention to coordinate and deploy evidence-based public health strategies to mitigate violence in the community.

Medical professionals have an important role to play in stemming the tide of violence. However, in North Carolina, we are disincentivized from reporting patients who appear at high risk of committing violent acts against others. No one can predict violence with certainty, and people with mental illness are more likely to be victims than perpetrators of violence. Nonetheless, with the proliferation of guns and ease of access, mental health professionals are positioned to see warning signs for violence and to act to protect their patients and the community -- and that's especially true when someone makes an explicit threat. But to do so, mental health providers need legislative or judicial support to breach confidentiality when they encounter a high-risk patient who discloses the intent to hurt someone.

The California Supreme Court developed the duty to protect a patient's potential victims in a case in which the University of California was held liable for damages when a man disclosed to his therapist his intent to kill his love interest, and then did so. The victim, Tatiana Tarasoff, was never notified of the threat. Her family sued and in two court decisions in the mid-1970s, the justices found there was a duty to "use reasonable care to protect the intended victim against such danger." By 1985, the Tarasoff rule was codified in California law, whereby a therapist could be held liable for failing to protect third parties from a patient's violent behavior "if the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims..."

The setting (e.g., inpatient or outpatient) influences clinicians' decision on which action to take, but there are generally four mechanisms to discharge Tarasoff-like duties. Involuntarily committing a patient may allow for treatment and mitigation of risk if the risk is originating from mental illness. Notably, in the absence of mental illness, a person cannot be held against their will for expressing serious homicidal thoughts. Therefore, voluntary admission may be a reasonable option if the patient agrees, yet could become an issue if the patient no longer meets inpatient criteria or rescinds consent and has continued to express homicidal intent. The other mechanisms include warning the potential victim and informing the police. However, all these decisions become ethically complex as the clinician must consider their duties of confidentiality to the patient and their responsibility to protect others by issuing a warning, while also weighing their legal liabilities in each scenario.

Policies related to clinicians' duty to warn and protect also vary by state. So called "mandatory reporting states" require medical professionals to break confidentiality and report threatening patients, while permissive states allow confidences to be broken in circumstances when a victim is identifiable and the threat appears imminent. Only four states (Nevada, Maine, North Dakota, and North Carolina) do not explicitly recognize some version of clinicians' duties to protect potential victims, thereby potentially leaving clinicians at legal risk should they violate patient confidentiality. In North Carolina, there exists neither legislative direction nor clear case law about the duty to protect.

These states leave a duty to protect up to the courts. In North Carolina, the Court of Appeals in Gregory v. Kilbride (2002) did not recognize a Tarasoff-like duty to warn after a psychiatrist discharged a man from an inpatient psychiatric unit who repeatedly made threats to kill his wife and his child. Tragically, shortly after discharge the man shot and killed his wife. The psychiatrist was sued for negligence in his failure to warn (among other allegations). But the judge, in a verdict upheld on appeal, dismissed the plaintiff's claim that the psychiatrist had a duty to warn the victim, with the appellate court holding that North Carolina law only recognized "a duty to exercise control over the patient 'with such reasonable care as to prevent harm to others at the hands of the patient,' and not a duty to warn."

On one hand, sweeping Tarasoff duties may be an unreasonable burden on clinicians. For example, in 2020, the Pennsylvania Supreme Court in Mass v. UPMC expanded therapists' duty toward third parties when a patient expressed a desire to kill unnamed neighbors. The court ruled that this threat was specific enough to require the clinicians to warn all residents of the patient's apartment building. On the other hand, a clearly articulated Tarasoff law would help psychiatrists in North Carolina protect potential targets of violence when a patient has identified a specific target and has the means to cause harm. A permissive law defining reporting duties and providing protection from liability if such actions are taken would lend structure and support to mental health providers' efforts to balance appropriate medical care with public safety.

Cooper's recent initiatives aimed at improving awareness and reducing access to the most common weapon used for violent crimes -- guns -- are not enough. Passing clear, expert-informed legislation recognizing clinicians' duty to protect in specific circumstances would send a much different and much needed message. Most importantly, it would allow clinicians to practice with confidence knowing that if they determine a patient is dangerous enough to make the difficult ethical choice to breach confidentiality, they won't be in legal jeopardy.

Scott R. Polick, DO, is a psychiatrist with the Department of Psychiatry at Durham VA Health Care System in North Carolina. Carri S. Polick, PhD, is a nurse scientist in the department of health services research and development at Durham VA Health Care System. She is also a clinical associate in the Duke University School of Nursing. Dominic Sisti, PhD, is an associate professor in the Department of Medical Ethics & Health at the University of Pennsylvania Perelman School of Medicine in Philadelphia. Paul S. Appelbaum, MD, is the Dollard Professor of Psychiatry, Medicine & Law at Columbia University and the New York State Psychiatric Institute in New York City.