Duty to protect

In medical law and medical ethics, the duty to protect is the responsibility of a mental health professional to protect patients and others from foreseeable harm. If a client makes statements that suggest suicidal or homicidal ideation, the clinician has the responsibility to take steps to warn potential victims, and if necessary, initiate involuntary commitment.[1] The majority of people have, at some stage, had thoughts about killing someone.[2]

United States

The duty to protect was established by Tarasoff v. Regents of the University of California,[3] which has been widely adopted by other states.[4] This case determined that the clinician has the duty to warn an identifiable victim. Jablonski by Pahls v. United States extended this responsibility to include the involuntary commitment of a dangerous individual. Ewing v. Goldstein extended the duty to protect to include acting upon the statements of third parties that indicate possible threat, and determined that it was not sufficiently discharged by initiating involuntary commitment; warning identifiable victims is also necessary.[4]

United Kingdom

Selwood v Durham City Council created a limited duty to warn in the United Kingdom. The case involved a social worker, Claire Selwood, who was seriously injured after being assaulted by an individual who was being treated by a mental health professionals employed by Durham City Council. Selwood worked closely with the mental health workers responsible for the individuals care, though did not have the same employer. During treatment the individual said of Selwood, that they would "kill her on the spot" if they saw her. In her ruling, Dame Janet Smith said that there was a distinction between a duty to someone working closely with a defendant, as in this case, and the public at large.[5]

The Counter-Terrorism and Security Act 2015 created a duty of individuals working in healthcare and education to report individuals deemed at risk of radicalisation to the police where they will be invited to participate in Channel (part of the UK's CONTEST antiterrorism program), a program that refers individuals to other services.[6]: 21  The passing of this legislation resulted in an open letter by academics predicting than this legislation would create a chilling effect and arguing that the lack of open debate would create greater risk for society.[7]

Criticism

The duty to protect has been criticized by some clinical psychologists because it may prevent people seeking help and in fact may cause unnecessary violence because it prevents clients from getting support in resolving their problems, and that it is peculiar that a friend or acquaintance has no duty to divulge information, while a psychotherapist who is seemingly in a position of trust must[8]: 421  In the Tarasoff case, the police had been warned about Podar resulting in him being questioned, released, and then ceasing to work with his psychiatrist. The violation of confidentiality in this case could be viewed as the cause of the murder.[8]: 418  The implementation and enforcement of this law has been inconsistent and difficult.

See also

  • Mandated reporter

References

  1. ↑ Corey, Gerald Corey; Corey, Marianne Schneider; Callahan, Patrick (2007). Issues and Ethics in the Helping Professions (7th ed.). Belmont, CA: Brooks/Cole/Thomson Learning. ISBN 978-0-534-61443-0. OCLC 65465556.
  2. ↑ Gilbert, Flora; Daffern, Michael. "Aggressive scripts, violent fantasy and violent behavior: A conceptual clarification and review". Aggression and Violent Behavior. 36: 98–107. doi:10.1016/j.avb.2017.05.001. ISSN 1359-1789.
  3. ↑ Simon, Robert I. (2001). Concise Guide to Psychiatry and the Law for Clinicians. Concise guides (3rd ed.). Washington, DC: American Psychiatric Publishing. ISBN 978-1-58562-024-1. OCLC 45202323.
  4. 1 2 Weinstock, Robert; Vari, Gabor; Leong, Gregory B.; Silva, J. Arturo (December 2006). "Back to the Past in California: A Temporary Retreat to a Tarasoff Duty to Warn". Journal of the American Academy of Psychiatry and the Law. 34 (4): 523–528. PMID 17185483. Retrieved 2008-01-08.
  5. ↑ LORD JUSTICE THORPE
    LORD JUSTICE RIMER
    and
    DAME JANET SMITH, Selwood v Durham County Council & Ors [2012] EWCA Civ 979 (18th July 2012), retrieved 2020-11-23
  6. ↑ Channel Duty Guidance: Protecting people vulnerable to being drawn into terrorism (PDF). UK Government. 2020.
  7. ↑ "PREVENT will have a chilling effect on open debate, free speech and". The Independent. 2015-07-10. Retrieved 2021-08-27.
  8. 1 2 "The Duty to Warn: A Reconsideration and Critique".


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