Do Virginia Therapists have a “Duty to Warn” or a “Duty to Protect” ?

What are our ethical and legal responsibilities if a client threatens harm to others?  What is the difference between a legal “duty to warn” and a legal “duty to protect”?  Which of these applies in Virginia?  In addition to cases of threats of harm, what are the other circumstances when Virginia clinicians have a legal duty to disclose information for the protection of the client or of someone else?  How closely do our profession’s ethical responsibilities coincide with our legal obligations under Virginia law?

OUTLINE :

I. Underlying Issues

A. Distinguishing “Duty to Warn” From “Duty to Protect”

B. Weighing Personal Values vs. Ethical Obligations vs. Legal Duties

II. Ethical Obligations

A. Confidentiality (Ethical Rule and Ethically-Allowed Exceptions)

B. Informed Consent About Confidentiality’s Limits

III. Legal Issues

A. Confidentiality (Legal Rules; Legally-Allowed and -Imposed Exceptions)

1. Licensing Board Regulations (Confidentiality vs. Peer Reporting)

2. Health Records Privacy Statute -§32.1-127.1:03

B. Duty to Protect the Public From:

1. Dangerous Patients – “Duty to Protect” Statute — §54.1-2400.1

2. “Dangerous” Health Care Providers — Reporting Requirements

3. Abusers of Children – Abuse Reporting Statute –§63.2-1509

4. Abusers of Elderly/Disabled Adults – Reporting Statute — §63.2-1606

C. Commitment of Patients Dangerous to Self or Others

1. Criteria (July 2008) — §16.1-345; §37.2-809

2. Disclosing Records (July 2008) — §16.1-337; §37.2-804.2

3. Immunity –§16.1-337; §37.2-804.2; §54.1-2400.1

IV. Practical Considerations & Advance Planning

A. Difficulty of Predicting Dangerousness to Self or Others

B. Clarifying Virginia’s New Civil Commitment Criteria & Procedures

C. Deciding When HIV-Positive Patients Pose Danger to Third Parties

D. Deciding How/When to Report (Abuse; Provider Misconduct; Other)

E. Planning How to Respond to Demands for Records

Educational Goals:
(a) Describe the difference between “duty to warn” and “duty to protect;”
(b) Explain when the legal “duty to protect” applies to Virginia mental health professionals;
(c) List the legal options available to Virginia therapists in response to this legal duty;
(d) Decide how those options might apply in your own practice.