Does confidentiality mean hiding a plausible threat to safety? Wheredoes a clinician’s duty lie?
Mr. B, 26, couldn’t seem to hold a job. Nevertheless, he proposed marriage to his girlfriend of three years and she accepted.
With the wedding looming, he was determined to keep his current position on the assembly line of a paper mill. His good intentions, however, soon fell by the wayside, as he began slipping into his typical pattern of missing work, mouthing off to his bosses, and generally slacking off on the job.
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Mr. B’s immediate supervisor twice warned him that his absences and lackluster performance could lead to dismissal. Eventually, Mr. B was summoned to the office of Mr. H, the human resources manager.
Without mincing words, Mr. H warned Mr. B that his job was in immediate jeopardy. Mr. H reprimanded Mr. B for his excessive absenteeism and his poor work quality and told him in no uncertain terms that he would be terminated if his job performance did not improve and if he had any more unexplained absences from work.
During the meeting, Mr. B was openly hostile to Mr. H, muttering “I’d like to kill you” under his breath. But Mr. H retained his composure and sent Mr. B back to the assembly line.
When Mr. B got home that night, he couldn’t contain his fury. For several hours, he ranted and raved to his fiancée about wanting to kill Mr. H, and she became increasingly alarmed.
“I’m worried about you,” she said. “We can’t start a life together while you’re in this state.” She begged him to get psychological help, and after days of discussion, he grudgingly agreed to an evaluation at a local psychiatric practice.
There he met Mrs. A, a 58-year-old nurse practitioner with more than 30 years of experience in psychiatric settings. Mrs. A had already spoken to Mr. B’s fiancée, when the young woman made the appointment for him. She had told Mrs. A that all Mr. B could think about was harming the human resources manager and that he’d seemed depressed and angry for weeks. Mrs. A assured the young woman that she would evaluate Mr. B and assist him in getting help if necessary.
The meeting between Mrs. A and Mr. B lasted several hours. During their discussion, Mr. B candidly discussed his mental state, including his thoughts about harming himself, his hatred for Mr. H, and the voices in his head that told him to injure himself or Mr. H. He also mentioned that he had a gun in his home and knew how to use it.
The discussion left Mrs. A extremely distressed. She believed that Mr. H was in imminent danger and that she had a responsibility to warn him. She also believed that Mr. B was a danger to himself and might need to be hospitalized.
She spent the next hour consulting one of her supervising psychiatrists, as well as the attorney the practice kept on retainer. Then she called Mr. H, telling him about Mr. B’s threat and that it should be taken seriously.
Later that day, the manager fired Mr. B, who blamed the termination directly on Mrs. A. He promptly hired a plaintiff’s attorney to sue her and the practice for invasion of privacy and negligent disclosure of confidential medical records. Mr. B waived his right to a jury, and the case proceeded before a judge alone.
At trial, Mr. B recounted his session with Mrs. A. He explained that he understood the conversation would be kept confidential and accused her of breaching that confidentiality by calling Mr. H. He also testified that he had been unable to find work since he was fired.
Mrs. A cited her 30 years of practice and said this was the first time she had ever felt the necessity to warn a third party about a patient. She explained that Mr. B was having hallucinations, with voices telling him to commit violent acts. “I was made aware that he had a gun,” she said, “and I was very, very worried about what he might do.”
When her attorney asked what she believed her duty was in this case, Mrs. A replied, “I have a duty to both protect and warn. My duty is to protect my patient from doing anything that would harm him or harm another person. If Mr. B harms another person, that action does irreparable harm to Mr. B as well.”
“If someone is identified and I think there is a reasonable possibility that he is in danger, I have to tell him that this person has threatened to harm him,” Mrs. A continued. “I don’t have to tell him anything else. And in this case, I did not.”Mr. H took the stand next and denied Mrs. A had anything to do with his actions.
Mr. B’s poor performance and attendance record, not his threats, led to his firing, the manager testified. “He wasn’t doing his job,” said Mr. H. “Earlier in the day, before I even got the call from Mrs. A, the production manager sent me a memo recommending that Mr. B be terminated. The decision was already made before we got the phone call.”
After a brief retreat to his chambers to review the evidence, the judge dismissed the case.
Legal background
Mr. B’s lawsuit failed because he could not prove a crucial element of his case: “proximate cause.” To be successful, he had to show that Mrs. A’s call to Mr. H immediately and directly caused his termination.
He couldn’t do that, however, because there was ample evidence that he was fired for poor performance, excessive absences, and insubordination. Nothing introduced at trial, other than Mr. B’s belief, indicated that he was fired because of the phone call from Mrs. A.
Protecting yourself
Documentation is especially helpful in cases involving the duty to warn. Extensive notes about the evaluation of the patient, what was said, unusual behaviors, and obvious threats will all help establish the need for a breach of confidentiality.
Mrs. A handled the situation admirably. After determining that Mr. B posed an immediate danger to Mr. H, she consulted a supervising psychiatrist to get a second opinion, and she spoke to an attorney to ensure she understood her duty to warn.
The attorney told her that the duty to warn actually creates a responsibility for a clinician to breach confidentiality if the patient or a third party is in obvious or imminent danger. Mr. B’s possession of a gun, his hearing voices, and his numerous statements that he wanted to harm Mr. H were clear indications of an obvious and imminent danger.
Mrs. A did not make the decision to warn Mr. H lightly, and she divulged nothing more than was necessary to protect both her patient and Mr. H. Her good judgment may have saved more than one life.
