In therapy, a strong therapeutic alliance between the therapist and client is central for clients to feel comfortable opening up about all kinds of personal challenges. In fact, the therapeutic alliance is often identified as the most important factor determining client success in therapy. The therapists’ protection of client confidentially—basically what is said in the therapy office, stays in the therapy office (with some exceptions)—helps clients to feel safe to share, knowing the therapist will not be spilling their secrets to the store clerk while checking out at Walmart. However, when the legal duty to warn conflicts with the therapist’s ethical and professional obligations of upholding confidentiality, therapists can face challenging situations.
The duty to warn is a law that mandates that mental health professionals must warn third parties whom they believe their client may harm, thereby breaking client confidentiality. This law originated in California as a result of Tarasoff v. Regents, in which the California Supreme Court decided that mental health professionals have a duty to protect third parties, often by either warning the third party or notifying the police. Not every state has duty to warn, currently.
In states where duty to warn exists, therapists must first decipher whether what a client shares in the privacy of a session, signals that the client is likely to harm someone else. Then, the therapist must decide what, if any, action upholds the law as well as their professional ethics. Duty to warn does not completely dismiss professional ethics of confidentiality, as the therapist should only divulge what is necessary.
In states, such as Texas, in which there is no duty to warn, therapists may find themselves facing a different set of challenges, perhaps wanting to warn a third party but being unable to, as doing so would break professional ethics and possibly other state laws regarding client privacy.
In New Mexico, there is no specific statute dealing with a duty to warn, and common law must be looked at when determining whether the duty to warn is permissive or mandatory, or if the duty exists at all.
Therefore, therapists must focus not only on their clients’ mental health and their own professional ethics, but also the specific state laws influencing their practice. Being well-informed will help therapists make the best clinical decisions in the moment, also protecting themselves within a profession so focused on helping others.
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