Counselor Liability and the Duty To Warn: Selected Cases, Statutory Trends, and Implications for Practice

Abstract

The authors review selected case law and recently enacted state statutes pertinent to “the duty to warn.” Guidelines for practice in dealing with dangerous clients are offered.

Duty‐to‐Warn Guidelines for Mental Health Counselors

“…Familiarize yourself with the established procedures and policies of the agency or institution in which you work as they pertain to difficult or dangerous situations so that you will be prepared. Thoroughly research applicable laws of the state in which you practice (Corey, Corey, & Callanan, 1988;Herlihy & Sheeley, 1988;Lamb et al, 1989;Pietrofesa et al, 1990;Snider, 1985).…”

“…In involving the client, integrity is maintained in the counseling relationship, and the counselor is potentially relieved of having to breach confidentiality. Another approach suggested by Herlihy and Sheeley (1988) consists of the counselor's inviting the client to participate by contacting the third party in the presence of the client. Of course, the counselor is obligated to warn the victim regardless of whether or not the client becomes involved in the process, and the client must be made aware of this fact.…”

“…Records should be as objective as possible because they can serve as valuable pieces of evidence in court. Knowing the difference between public notes and personal notes and researching state policies regarding which notes can be subpoenaed is advised (Camazine & Duncan, 1987;Corey et al, 1988;Herlihy & Sheeley, 1988;Lamb et al, 1989;Pietrofesa et al, 1990, Snider, 1985. Because state laws vary on this point, counselors should investigate the client record rules of the state in which they practice.…”

An A‐B‐C‐D‐E Worksheet for Promoting Beneficence When Considering Ethical Issues

“…Furthermore, counselors must be aware of the possible legal consequences that could result from a failure to act in accordance with the law or legal precedent. Although it may be possible to act in a way that is ethical and in accordance with laws and statutes, at times, ethical and legal duties may conflict forcing the counselor to make difficult decisions (see Herlihy & Sheeley, 1988). Counselors must anticipate possible consequences that may result from their actions when responding to an ethical dilemma.…”

“…Several authors (Eberlein, 1987;Herlihy & Sheeley, 1988;Keith-Spiegel & Koocher, 1985;Tymchuk, 1986) have proposed problem-solving models that involve an understanding of theories and ethical principles to promote a more sophisticated ethical decision-making process. These models suggest specific guidelines for ethical decision making, yet they may be cumbersome and unwieldy when one is suddenly in the throes of an ethical dilemma.…”