Duty to warn about mental status: legal requirements, patient rights, and future ethical challenges

By Elaine Walker, Ph.D. 

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Balancing patient confidentiality with public safety continues to be a contentious issue in both legislation and professional ethics. In this post, some aspects of the delicate balance are examined with reference to professional duties to protect individuals or public safety by warning or reporting on dangers posed by patients. Because “duty-to-warn” has been most salient in the fields of neurology and mental health, these areas will be the main focus (Felthaus, 2006; Werth et al., 2009). 

This year, legislators in the state of New York proposed a bill that would require physicians to notify the state Department of Motor Vehicles (DMV) about certain medical conditions (e g., seizure disorder, dementia) that might compromise driving ability and endanger public safety. The proposed bill was precipitated by the death of two children who were hit by a car driven by a woman who had a record of previous violations and experienced a seizure at the time of the fatal accident. Lawmakers sponsoring the bill argued that the proposed reporting requirement will help get dangerous drivers off the street. Citizens expressed their agreement by marching in support. Understandably, others responded with concern about increased physician liability, as well as potential violations of patient confidentiality and rights. 

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Because legislation imposing a legal duty to warn about or report on mental status places health care providers in potential jeopardy for both failure to report and breach of confidentiality, it raises numerous questions about diagnostic procedures and thresholds. For example, in the case of seizures, what categories of evidence should be considered sufficient? While standard procedures for diagnosing epilepsy include electroencephalograms (EEGs), seizures can be readily observable in the absence of any medical test. If a patient refuses an EEG, but the physician observes clinically significant seizures, does that observation provide sufficient evidence to require the physician to report the patient to the DMV? Alternatively, if there is significant EEG epileptiform activity, but no observable seizures, should the patient be considered at-risk for seizures and prohibited from driving?

The responsibility to warn about public dangers due to patient impairment has been especially challenging in the field of psychiatry. In 1976, the Supreme Court of California (Tarasoff v. Regents of the University of California) ruled that mental health care providers had a legal duty to warn identifiable victims of a patient’s serious threats to harm them. This legislation has been widely recognized in U.S. jurisprudence, and it set the stage for national standards for the responsibilities of mental health professionals. It has also generated a large body of literature concerning the circumstances that give rise to these warnings from professionals. But more recently, the discussion has moved from patients to public figures. 

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In a highly controversial edited volume (The dangerous case of Donald Trump: 27 psychiatrists and mental health experts assess a president), psychiatrist Dr. Bandy Lee and contributors have taken the duty-to-warn one step further; they argue that the responsibilities of mental health professionals extend to protecting the public from political leaders who are dangerous due to their mental status impairment or brain dysfunction (Lee, 2017). This notion runs counter to the so-called “Goldwater Rule”, formalized in 1973 by the APA in Section 7 of the American Psychiatric Association's (APA) Principles of Medical Ethics, which states that “it is unethical for psychiatrists to give a professional opinion about public figures whom they have not examined in person, and from whom they have not obtained consent to discuss their mental health in public statements.” (This provision was named after presidential candidate Barry Goldwater in response to some psychiatrists’ public statements warning about his psychiatric status.) Taking a position counter to the “Goldwater Rule”, psychologists Scott Lilienfeld, Joshua Miller and Donald Lynam have pointed out that there is substantial research which raises serious questions about the assumption that in-person examinations are the gold standard (Lilienfeld et al., 2018). When compared to in-person psychiatric interviews, observational data, informant reports, and life history information can yield more reliable, predictive, and accurate diagnoses. Because the latter information about public figures is now more readily accessible from a variety of sources, Lilienfeld and his colleagues raise questions about the Goldwater Rule, suggesting it is “outdated and premised on dubious scientific assumptions.” They also advocate for a “duty to inform”, such that mental health experts should be able to comment on a public figures’ psychiatric status when these individuals hold positions of power and could take actions that threaten the publics’ safety, as is the case for political figures. 

With advances in predictive medicine, automated diagnostics, and related scientific fields, our ability

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to diagnose and predict illnesses, including neurological and psychiatric syndromes, will increase. For example, in the field of dementia research it is now possible to test for cognitive deficits, such as memory loss, speech, and visual/spatial problems, which appear before the onset of symptoms that meet the severity criteria for clinical diagnosis (Peterson et al., 2001). These deficits occur on a continuum with the more significant cognitive impairments that are the defining features of Alzheimer’s and other dementias. This raises the question of where, on the continuum of symptom severity (i e., from mild to severe cognitive and/or perceptual-motor impairment), should we place the threshold for imposing such restrictions? The implications of scientific advances will be accompanied by more ethical challenges as we attempt to balance professional and legal guidelines about duty-to-warn with patients’ rights to confidentiality.
Of course, these concerns are not restricted to disorders that involve brain function or behavior. There are ongoing debates about duty-to-warn patient’s relatives about hereditary disease risks (Offit et al., 2004) and patient’s social contacts about viral exposures (Burke, 2015). In anticipation of the expanding scope of concerns about professional responsibilities to warn and inform, it is important that ethicists be involved in policy discussions concerning standards for diagnostic evidence and limits on patient and public rights to privacy. 

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Elaine Walker is the Charles Howard Candler Professor of Psychology and Neuroscience at Emory University.  She leads a research laboratory that has been funded by the National Institute of Mental Health and private foundations for over 30 years to study risk factors for major mental illness, especially schizophrenia and other psychosis.  Her research has focused on both the behavioral and neurobiological factors associated with psychosis risk.  In 2007, she was invited by NIMH to form a national consortium with eight other investigators who had been funded to do research in this area.  The consortium, The North American Prodrome Longitudinal Study, is the largest prospective study of youth who show clinical signs of risk that has ever been funded by the NIMH.  Now, in the 9th year of funding, this multi-site collaborative study is documenting the behavioral, brain, neuroendocrinological and epigenetic, changes that predate psychosis onset.  

References 

Burke, J. (2015). Discretion to Warn: Balancing Privacy Rights with the Need to Warn Unaware Partners of Likely HIV/AIDS Exposure. BCJL & Soc. Just., 35, 89. 

Chee, J. N., Rapoport, M. J., Molnar, F., Herrmann, N., O'neill, D., Marottoli, R., ... & Lanctôt, K. L. (2017). Update on the risk of motor vehicle collision or driving impairment with dementia: a collaborative international systematic review and meta-analysis. The American Journal of Geriatric Psychiatry. 

Felthous, A. R. (2006). Warning a potential victim of a person's dangerousness: clinician's duty or victim's right? Journal of the American Academy of Psychiatry and the Law Online, 34(3), 338-348. 

Holoyda, B. J., Landess, J., Scott, C. L., & Newman, W. J. (2018). Taking the Wheel: Patient Driving in Clinical Psychiatry. Psychiatric Annals, 48(9), 421-426. 

Knapp, S., & VandeCreek, L. (2005). Ethical and Patient Management Issues With Older, Impaired Drivers. Professional Psychology: Research and Practice, 36(2), 197. 

Lee, B. X. (2017). The dangerous case of Donald Trump: 27 psychiatrists and mental health experts assess a president. Thomas Dunne Books. 

Lilienfeld, S. O., Miller, J. D., & Lynam, D. R. (2018). The Goldwater Rule: Perspectives from, and implications for, psychological science. Perspectives on Psychological Science, 13(1), 3-27. 

Mirheidari, B., Blackburn, D., Walker, T., Reuber, M., & Christensen, H. (2018). Dementia detection using automatic analysis of conversations. Computer Speech & Language. 

Offit, K., Groeger, E., Turner, S., Wadsworth, E. A., & Weiser, M. A. (2004). The duty to warn a patient's family members about hereditary disease risks. Jama, 292(12), 1469-1473. 

Petersen, R. C., Stevens, J. C., Ganguli, M., Tangalos, E. G., Cummings, J. L., & DeKosky, S. T. (2001). Practice parameter: early detection of dementia: mild cognitive impairment (an evidence-based review): report of the Quality Standards Subcommittee of the American Academy of Neurology. Neurology, 56(9), 1133-1142. 

The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry" (2013 ed.). American Psychiatric Association. 

Werth Jr, J. L., Welfel, E. R. E., & Benjamin, G. A. H. (2009). The duty to protect: Ethical, legal, and professional considerations for mental health professionals. American Psychological Association.

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Walker, E. (2018). Duty to warn about mental status: legal requirements, patient rights, and future ethical challenges. The Neuroethics Blog. Retrieved on , from http://www.theneuroethicsblog.com/2018/11/duty-to-warn-about-mental-status-legal.html