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April • 28 • 2025
Duty to Warn: Balancing Patient Confidentiality With Public Safety
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Summary
When do mental health professionals have a duty to warn others of a threat a patient has made? State law varies considerably.
When does the duty to warn others override patient confidentiality? Although conversations between mental health professionals and their patients typically remain private, mental health professionals have a moral and legal responsibility to warn others of an impending danger. There is a fine line between respecting privacy and keeping the public safe – and error on either side could have severe consequences.
According to the Gun Violence Archive, in 2024, there were 503 mass shootings. This is in addition to the 19,135 gun-related deaths and the 36,562 gun-related injuries that were considered willful, malicious, or accidental.
After a mass shooting event, public discourse typically focuses on two areas: gun control laws and mental health. According to Ragy Girgis, MD, an associate professor of clinical psychiatry at Columbia University, despite common perception, people with mental illness account for only a small percentage of people who carry out mass shootings. Only 5% of mass shootings are related to severe mental illness, while 25% are associated with non-psychotic psychiatric or neurological illness (such as depression), and 23% are associated with substance use.
If an individual has spoken to a psychiatric professional about their desire to hurt others, when do psychiatric professionals have a duty to warn others if it means breaking patient confidentiality?
In 1976, the Supreme Court of California issued its often-cited Tarasoff ruling in a case captioned Tarasoff v. The Regents of the University of California, et. al., 17 Cal. Rptr. 425, 551 P.2d 334 (1976). In it, the court recognized the confidential nature of psychotherapeutic dialogue, but found that the “public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others.” (Id at 442)
The court went on to state that once a therapist has “determined, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of the danger.” (Id at 439)
Most state courts have issued similar rulings. These cases place mental health providers in a situation requiring them to balance the risk of liability for violating a patient’s confidentiality with liability to a third party for failure to warn. Most states now have laws that permit, or in some cases require, mental health and other providers to disclose information when there is a threat of death or serious injury to another.
After this landmark ruling, many states passed “Tarasoff laws” that codified the duty to warn. Today, there is considerable variation in these laws between states.
The National Conference of State Legislatures indicates most states – although not all – have laws regarding whether mental health professionals may or must disclose information about patients who have violent tendencies. Only four states (Maine, North Carolina, North Dakota, and Nevada) have no duty to warn. Many states (including California, where the Tarasoff ruling took place) make the duty to warn mandatory. Quite a few states (including Oregon, Texas, and Florida, among others) give mental health professionals permission to warn others at their discretion.
When providers have to decide whether to break patient confidentiality to warn others, they may have a crisis of conscience. Having a clear policy that aligns with state law alleviates this moral burden while also reducing liability.
Ultimately, mental health professionals want to do what is right for their patients. Sometimes, this involves breaking patient confidentiality to warn others and prevent tragedy.
This article is based, in part, on Duty to Warn, an article by Susan Montminy, MPA, RN, BSN, CPHRM, CPPS.
Gun Violence in America
According to the Gun Violence Archive, in 2024, there were 503 mass shootings. This is in addition to the 19,135 gun-related deaths and the 36,562 gun-related injuries that were considered willful, malicious, or accidental.
After a mass shooting event, public discourse typically focuses on two areas: gun control laws and mental health. According to Ragy Girgis, MD, an associate professor of clinical psychiatry at Columbia University, despite common perception, people with mental illness account for only a small percentage of people who carry out mass shootings. Only 5% of mass shootings are related to severe mental illness, while 25% are associated with non-psychotic psychiatric or neurological illness (such as depression), and 23% are associated with substance use.
If an individual has spoken to a psychiatric professional about their desire to hurt others, when do psychiatric professionals have a duty to warn others if it means breaking patient confidentiality?
Historical Background: The Tarasoff Ruling
In 1976, the Supreme Court of California issued its often-cited Tarasoff ruling in a case captioned Tarasoff v. The Regents of the University of California, et. al., 17 Cal. Rptr. 425, 551 P.2d 334 (1976). In it, the court recognized the confidential nature of psychotherapeutic dialogue, but found that the “public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others.” (Id at 442)
The court went on to state that once a therapist has “determined, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of the danger.” (Id at 439)
Most state courts have issued similar rulings. These cases place mental health providers in a situation requiring them to balance the risk of liability for violating a patient’s confidentiality with liability to a third party for failure to warn. Most states now have laws that permit, or in some cases require, mental health and other providers to disclose information when there is a threat of death or serious injury to another.
State Variation in Tarasoff Laws
After this landmark ruling, many states passed “Tarasoff laws” that codified the duty to warn. Today, there is considerable variation in these laws between states.
The National Conference of State Legislatures indicates most states – although not all – have laws regarding whether mental health professionals may or must disclose information about patients who have violent tendencies. Only four states (Maine, North Carolina, North Dakota, and Nevada) have no duty to warn. Many states (including California, where the Tarasoff ruling took place) make the duty to warn mandatory. Quite a few states (including Oregon, Texas, and Florida, among others) give mental health professionals permission to warn others at their discretion.
Managing Risks Associated With the Duty to Warn
When providers have to decide whether to break patient confidentiality to warn others, they may have a crisis of conscience. Having a clear policy that aligns with state law alleviates this moral burden while also reducing liability.
- Review the laws and legal precedence in your state. Providers need to be aware of the relevant laws and rulings and align their policies appropriately. The chart provided by the National Conference of State Legislatures is a good place to start. Keep in mind that new court rulings and legislation could alter the requirements. Monitor for any changes in your state.
- Inform patients and manage expectations. Before treatment begins, make patients aware of the limits to confidentiality. Explain the matter clearly using plain language and provide examples of scenarios in which you would break confidentiality.
- Document the process. Document when you inform the patient of the limits to confidentiality. If a patient makes a threat, document your decision to warn or not to warn others and your reason for doing so. For example, if you decide to warn, document the threat that prompted this, why you deemed it necessary to warn others, and the specific actions you took in response. If you decide not to warn, document your decision and justification.
- Counsel your patients. When a patient appears to be a danger to others, hospitalization may be the best option. Encourage voluntary hospitalization but consider whether involuntary hospitalization is warranted. If you decide you need to warn others, consider asking the patient for permission while explaining why it is necessary to do so and reminding the patient of the limits to confidentiality.
- Obtain legal advice. If you are uncertain as to whether a situation necessitates a duty to warn, consult risk management or an attorney for guidance before acting.
- Prioritize your own safety, too. When discussing hospitalization or the need to warn others, be aware of your own safety. Make sure you can exit the room quickly without being blocked. Consider installing a panic button.
Ultimately, mental health professionals want to do what is right for their patients. Sometimes, this involves breaking patient confidentiality to warn others and prevent tragedy.
This article is based, in part, on Duty to Warn, an article by Susan Montminy, MPA, RN, BSN, CPHRM, CPPS.
Copyrighted. No legal or medical advice intended. This post includes general risk management guidelines. Such materials are for informational purposes only and may not reflect the most current legal or medical developments. These informational materials are not intended, and must not be taken, as legal or medical advice on any particular set of facts or circumstances.