Ethical and legal concerns arise when a patient confides that he wants to kill his stepfather.

Many of Dr. T’s psychiatric patients are acutely ill, very distressed, and dangerous to themselves and others. One such patient was a 28-year-old man whom Dr. T treated while on call in the emergency department (ED). The man suffered from long-term alcohol abuse and was paranoid and delusional. Dr. T admitted him to the hospital’s psychiatric unit and treated him, both on that admission and as an outpatient for the next three years, with psychotherapy and medication. The main source of the man’s troubles was friction with his extended family, primarily his stepfather.

During his third voluntary admission, the patient expressed hostility toward his family and told Dr. T that he wanted to kill his stepfather. Dr. T noted this in the man’s medical record and further elaborated that “the patient has decided not to do it, but this is how he feels.”

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The troubled man then shot and killed his stepfather one month after his discharge from the hospital. The family of the murdered man later filed a malpractice suit against Dr. T for “failing to warn [the stepfather] or any law-enforcement official” of the threats made by the patient.

The pretrial hearings moved through discovery and the exchange of documents and medical charts before ending with depositions. Family members worked hard to establish that the stepfather had not been alerted to the stepson’s hostility and threatening behavior before, then described how his death had disrupted their lives.

Dr. T testified that he had not warned the stepfather because of patient-confidentiality concerns. In fact, he believed that state law made it illegal to reveal any details of a patient’s mental-health record to a third party without the patient’s consent. Finally, the plaintiff’s lawyer visited the patient in prison but was unable to persuade him to give a deposition.

After the last deposition, the defense met to decide on a strategy. The lead defense lawyer had already researched the applicable state laws and recommended filing a motion to dismiss the case, but he needed approval from Dr. T and the malpractice insurance company. The parties met to discuss the situation, and eventually, all agreed to move for dismissal. After hearing arguments on the motion, the judge dismissed the case against Dr. T. The plaintiff’s lawyer filed an immediate appeal with the regional court, which reversed the trial judge’s decision and referred the case back to the trial court.

At this point, the defense reconvened and opted to appeal the decision to the state supreme court. Six months later, the high court heard the case. The plaintiff’s lawyer stipulated that the current law prevented Dr. T from notifying potential victims identified by his patients and insisted that it be changed.

The state supreme court, however, sided with the defense and held that the current statute should stand. In Texas (where this trial took place), Dr. T was not permitted to breach patient confidentiality—even to warn potential victims threatened by one of his patients.

Legal background

In the wake of the 1976 decision in the case of Tarasoff v. Regents of the University of California, approximately half of the states require mental-health professionals to warn third persons if a patient makes credible threats against them. A more recent case, also in California, expanded the therapist’s duty to warn to include a situation in which an immediate family member alerts the therapist that a patient poses a threat to a third party. Professional groups have expressed concern at the erosion of confidentiality and the concurrent expansion of professional liability.

A 1979 Texas law allows therapists to breach patient confidentiality to medical providers or law-enforcement officials if there is immediate danger to the patient or others, but the law does not include a duty to warn potential victims of the patient. The Supreme Court of Texas declined to change that law in this case, stating that the legislature’s intent and the wording of the law were clear and constitutional.

Lessons learned

An increasing number of clinicians provide mental-health or other remedial counseling and are caught in a complex maze of confidentiality laws and ethical concerns.

Since each state has different requirements as to the confidentiality of mental-health records, it is up to the individual provider to educate himself as to local laws. These are usually available through professional societies, continuing education sessions, professional journals, or the state licensing board’s Web site.

The plaintiff’s lawsuit in this case was based on one sentence in the patient’s record. Since mental-health records are discoverable under a variety of circumstances, clinicians who provide counseling must be careful about what they enter in the record. Comments about a patient’s presumed mental state must be carefully worded, keeping in mind that the entry may one day be read in court.

Threats made during therapy are a signal to seek advice from a colleague, mentor, or supervising physician in a confidential and professional setting. You can also seek advice from the medical licensing board and professional societies. Your response to such a situation may have ethical, legal, and therapeutic consequences.

One strategy is to convince the patient to waive confidentiality, allowing the provider to warn the threatened party. This approach is favored by ethicists but has distinct personal and professional drawbacks.

Another is to inform the authorities without the patient’s consent, an action which is less effective than you may think.A third option, if allowed by state law, is to inform the target without seeking the patient’s consent. Your decision will depend on the circumstances and the applicable state laws.