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The Duty to ProtectReview - The Duty to Protect
Ethical, Legal, and Professional Considerations for Mental Health Professionals
by James L. Werth Jr., Elizabeth Reynolds Welfel, G. Andrew H. Benjamin (Editors)
American Psychological Association, 2009
Review by Roger Chao
Jan 26th 2010 (Volume 14, Issue 4)

For most mental health professionals today, one of the most perplexing and stressful issues encountered in their working life, is that of their legal and ethical obligations regarding situations where their client is at risk of harming others or themselves. Ever since the Tarasoff case (Tarasoff v. Regents of the University of California, 1976) when the term "Duty to Warn" was first defined, the legal obligations of these MHPs (Mental Health Professionals) has grown increasingly confusing due to the vagueness and constant changes of the law regarding the limits of MHP/client confidentiality. Without a definitive protocol on how to deal with these dilemmas in a mental health care setting, many MHPs are going to continue to be at risk of malpractice liability or of unethical conduct whenever the duty of confidentiality is breached. Thus it is paramount that the legal and ethical duties of these practitioners is clearly defined, to ensure minimization of these unfortunate events.

This anthology is edited by Werth, Welfel and Benjamin, was written for Clinicians, Supervisors and Trainers. It seeks to define and clarify the Duty to Protect, offer suggestions for the requisite assessments steps, and recommend subsequent interventions to reduce risk. Their position is distinctly in favor of a newer Duty to Protect, compared to the older Duty to Warn. The editors hope that by reading this, the readers "realize that the concept and application of the duty to protect allows for significantly more possibilities for assessment and interventions than an overly narrow focus on a duty to warn." (p.7). The aim of this book is thus to recommend for a shift towards a Duty to Protect legislation, as well as helping mental health providers to understand their options and obligations concerning this; by giving them tools "to evaluate whether a duty-to-warn or a duty-to-protect context has arisen and, in light of the evaluation, whether a particular intervention is necessary." (p.9)

The book consists of 16 original essays, by leading professionals in their field, and is split into four sections. The first section, entitled, "Foundational Issues", begins with an essay by Welfel, Werth and Benjamin, and introduces the concept of the Duty to Protect, as well as stressing the necessity of each individual mental health professional to "know ( and not assume) what the legal language in the state(s) or province(s) in which one practices" (p.7) due to the huge variations in the legal language from region to region. The second essay by Benjamin, Kent and Sirikantrapornn outlines a 5 step process "to establish a reasonable course of action while meeting any duty to protect" (p.20), based on "(a) disclosure and informed consent before evaluation and treatment begins, (b) therapeutic alliance, (c) assessment of the threat, (d) peer consultation, and (e) documentation." (p.20). The remaining two essays in this section compare differing ethics codes of various bodies in different countries, highlighting the huge variation between them, as well as commenting on their pro's and con's.

Section 2, entitled "Harm to Others" is made of six chapters, each dealing with a different issue with potential for confidentiality breaches (and as a result, risk of malpractice liability or ethical breaches), and recommendations on how to deal with these cases in light of a Duty to Protect. The six issues addressed are Homicide, Intimate Partner Violence, Stalking Offenders, Threats against Public Officials, Impaired Driving and Operation of Equipment, and Communicable Diseases. Each chapter in this section stresses the continual evolution of health care practices, for as Rosenbaum and Dowd say in their chapter on Intimate Partner Violence "Although current risk assessments are flawed, and models of treatment are less effective than we would like, it is imperative to continue to intervene and protect to the best of our ability while striving to learn more effective ways to do so." (p.91) The chapter on "Working with the stalking offender" by Rosenfeld, Fava and Galietta is particularly insightful in highlighting the difficulty in designing effective assessment tools for for risk analysis of potential harm doing. This is shown with the comment they make that, "It should be noted that although, in general, asking the client to make the disclosure of violence risk may be a good intervention, this is not true in the case of stalking. In fact, it is probably illegal in most instances (give the frequent existence of a no-contact order)." (p.100).

In the chapter on "Threats against public officials", Randazzo and Keeney highlight the benefit in new and novel techniques for risk assessment concerning such a threat; particularly that of gaining the client's consent to speak with other persons familiar with the clients current functioning. As Randazzo and Keeney say, "This option is not one that clinicians generally pursue in traditional therapeutic contexts because of the need to maintain confidentiality and the integrity of the therapeutic relationship" (p.116); however given the client's consent this is very beneficial in providing the MHP with a more informed assessment of the clients level of dangerousness for more accurate risk assessment. Another novel technique Randazzo and Keeney discuss, is highlighted through a case in which law enforcement professionals passed on information they had detailing a clients wish to harm a public official to the clients therapist, thus preventing the harm from occurring. Even though the client had refused to give consent for the therapist to release any information about her, there was no breach in confidentiality in the law enforcement professionals passing on information they had concerning the client's wish, to the therapist. Thus this illustrates how a "partnership between mental health and law enforcement professionals can be mutually beneficial in a threat case even when the treating clinician cannot release any information about his or her client." (p.123).

The chapter on "Driving and operating other equipment", by Knapp and Vandecreek, highlights the complexities of applying a duty to protect in a setting where an impaired operator of equipment is placing others at risk, as "a traditional duty-to-protect obligation typically does not arise unless the client expresses intent to harm an identifiable victim" (p.136). The remaining chapter on Communicable diseases highlights this also, as a person with a communicable disease who does not intend any harm, but can infect anyone she passes on the street, can be thought of as a similar case to a bus driver with impaired vision.

The third section "Harm to Self" deals with the threes issues of suicide, self injury, and end of life decisions. Jobes and O'Connor in their chapter on suicide stress the importance of a thorough assessment of a client's risk, given the gravity of a false negative in this instance. In the chapter on self injury, Walsh argues that although a typical "duty to protect exceeds proper legal usage" (p.188) here, that there are rare situations in which it can apply; those where the self injurious behavior is directed to the face, eyes, breasts and genitals, due to the "severe level of bodily harm, and, thereby potential risk to life." (p.188); and thus in line with this, a duty to protect could entail informing the parents of a minor about their self injurious behavior, or psychiatric hospitalization until the client is stabilized. In end of life cases, as addressed in the chapter by Werth and Richmond, the non-judgmentality of the clinician when dealing with a client considering ending their life early is reinforced. When dealing with a terminally ill, yet fully mentally capable patient who expresses a wish to hasten their death, there is no ground for hospitalization of the client, and thus no invocation of the duty to protect needed, because there is no mental illness or impaired judgment causing his/her desire for death. Thus even if after working through the client's reasons for wanting to end their life early, the client wishes to still prematurely end their life, the clinician should not intervene in any way to prevent them from hastening their death; as to Werth and Richmond, only in instances of impaired judgment should the duty to protect be invoked.

The final section of the book serves to draw together all the previous chapters in a comprehensive guide for the MHP and policy makers. The first chapter in this section deals with self-care of the clinician, in regards to "any emotional sequelae of working with clients who threaten them, other people, or themselves." (p.225) and strategies to help improve this. To Brems and Johnson this is extremely important as it is only by protecting your own health, that you can best help others. This however is complicated by the fact that the clinician has a duty to "protect the client from harm, protect third parties from harm, and in the process keep him or herself physically safe and mentally focused." (p.224) The penultimate chapter by Welfel, deals with emerging issues in the duty to protect - issues that have either just recently arisen due to technological advances (e.g genetic risks to family members), or issues that have are now becoming increasingly risk assessable (e.g., the risk of homicide coupled with suicide) by new techniques. The recommendations Welfels draws, are for the clinician to stay as much abreast of recent developments as possible, as any new technological advances can very rapidly change their clinicians legal and ethical obligations.

The final chapter of the book is by Werth, Welfel, Benjamin and Sales, gives some final recommendations concerning practice and policy responses, outlining seven "key practice considerations related to clinical work with clients, some of whom may be dealing with issues that engender the duty to protect.  These considerations are," (p.252), those of "(a) the importance of informed consent; (b) the crucial need for thorough, contemporaneous assessment and documentation; (c) the importance of consultation; (d) the realization that context matters; (e) the understanding that, legally malpractice has four components; (f) the recognition that good clinical care is the best protection against possible legal action; and (g) a summary of recommended practices.: (p.252). This chapter concludes with warning about expanding the duty to protect too aggressively, since "the more clinicians become worried about possible liability or licensure board complaints, the less they will be able to focus on the issues and needs of their clients." (p.258).

Their recommendation is that the APA become more ".actively involved in policy development regarding issues of confidentiality" (p.258) and that the "APA should articulate a clear recommended policy rationale for the duty to protect to encourage consistent legislation across jurisdictions." (p.258). To the editors, "the interpretation of the duty has expanded so broadly and so inconsistently across jurisdictions that clinicians often find themselves in an untenable position when clients represent a risk to themselves or others. On the one hand, clinicians must maintain the therapeutic alliance to be most effective, on the other hand, the vagaries of many clinical contexts may trigger actions that would impair the alliance." (p.251). Thus to them the Duty to Protect must be more clearly defined, consistent, and in line with pragmatic clinical considerations, not just a rigidly cold application of the law with no regard to its clinical implications. Consistent with this they have a final recommendations for professional associations and licensing boards, to better educate their members about their legal and ethical obligations, as the better informed a clinician is of their legal and ethical duties, the less likely they are to breach them.

Overall, the book aims to encourage a move to a more defined, consistent, and fair, duty to protect legislation. Bearing in mind that this was published by APA and written by clinicians, it is understandable that the views represented in this book are all based around protecting the clinician from further malpractice suits, and thus at times does not always present a balanced viewpoint surrounding the debate and how to change the current duty to protect legislation. The viewpoints represented in the book are thus quite critical of judicial activism in regards to expanding the duty to protect, since in most cases it raises the level of responsibility for the clinician. This is not so much a criticism of the collection of essays on the part of the editors, but rather an understandable justification for their decision to do so, since the APA is there to represent its member's interests.  One additional minor criticism is that a lot of the essays, contain clear examples of self referencing, some of the authors of the articles citing up to 13 of their own separate papers in the one article, perhaps this is just by coincidence, but this still is quite unprofessional in a field with so many authors in the one subject area, thus reducing the justification for self referencing.

As an addition to the policy debates surrounding the duty to protect, this is a very useful book, containing many enlightening and useful viewpoints and arguments concerning the issues surrounding the duty to protect. Written by clinicians themselves, who have experienced firsthand what issues and dilemmas a duty to protect actually raises, this is a very valuable book for policy makers, enabling them to maker better informed decisions. Unless the duty to protect is more clearly defined and legislated in a manner that is fair to all parties concerned, the mental health services are at risk of becoming less valuable to society. In conclusion, this book is a very valuable addition to the literature concerning the duty to protect, and recommended reading for anyone who practices, supervises, trains, or legislates on matters concerning mental health.

 

© 2010 Roger Chao

 

Roger Chao is a contemporary moral philosopher working in a diverse range of fields. His interests include legal and political philosophy, the role of ethics in the formation public policy, bioethics, health-care ethics, and the ethical considerations that face many professionals today. His main interest is in how emerging technologies give rise to new ethical dilemmas, and how these can be analyzed by being broken down into its individual moral elements.


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