Editor's note: The following is Dr. Satel's response to the New York Times Room for Debate question: Do laws regarding mental health professionals' duty to warn authorities of a threat need to be toughened to make them more effective?
Almost all states have laws that either require or permit mental health professionals to disclose information about patients who may become violent. But that duty to warn and protect needs to be broadened.
The statutes are rooted in the California Supreme Court ruling in 1976 (Tarasoff v Regents of the University of California) that a therapist has a duty to use reasonable care to protect would-be victims to avert foreseeable danger. Thus, a therapist might warn the intended victim or others who are likely to inform the victims of that danger; notify the police; or take whatever steps are reasonably necessary under the circumstances.
Most states have “mandatory” duty-to-protect statutes. Among them is California, where Elliot Rodger had been seeing multiple therapists. Seventeen states, including the District of Columbia, have “permissive” statutes that allow, but do not require, the therapist to act. And four states (Maine, Nevada, North Carolina and North Dakota) have no statute at all.
But even in states with mandatory or permissive statutes, the victim or victims must be “readily identifiable” and “intended.” So what happens when there is no specific, foreseeable victim? Rodger’s enemies, as he named them in his writings and YouTube postings, were vague: all of “humanity” and, more narrowly, blonde women.
One answer is for states to follow Alaska, Florida and Oregon, whose statutes include a duty to protect even when the threats are to “society.” At the very least, this would allow clinicians to contact the police. When well-trained, police officers are able to conduct meaningful searches of the residence if weapons are suspected, and talk to parents, other family members and friends who can also point them to specific reasons for concern such as emails, literature or online searches (“how to make a bomb”), and social media postings.
In some instances, the police confiscate guns. As of last year, law enforcement officers in New York can remove firearms owned by patients likely to be dangerous. California is contemplating a Gun Violence Restraining Order that would allow a judge to temporarily stop an individual from buying or possessing a firearm.
Every state should have a mandatory duty-to-protect statute that takes effect even when there is no identifiable potential victim. But it should require, as did the Tarasoff decision, that the clinician determine “that his patient presents a serious danger of violence to another.” In some states, where a patient's threat alone is deemed a sufficient reason for a clinician to warn others, the bar for breaking confidentiality seems too low.
Police must be trained to assess situations in which the family or clinicians express concern and be given power to confiscate legal weapons.
In addition, therapists who do not report should be protected from civil and criminal liability if they acted "in good faith,” just as they already shield them from liability if they do report in good faith.