Written by KKJ Intern Alyssa Choate and Katrina Kuzyszyn-Jones, Psy.D.
Part 2 of 2 | Read Part 1 Here
Our previous article introduces the concept of a therapist’s duty to warn, which was first brought to light by the 1976 Tarasoff v. Regents of the University of California case. Specific to the state of North Carolina, there is no explicit duty to warn law. However, when navigating a psychologist’s duty of patient confidentiality and their ethical duty to warn, it is imperative to understand the legal implications and consequences of warning others of a dangerous patient.
When deciding if someone is a danger to themselves or others, therapists can reference Chapter 122-C-3 of the 2021 NC General Statutes, cited as the Mental Health, Developmental Disabilities, and Substance Abuse Act of 1985. To determine if one is dangerous to themselves, the NC Code says the following should be considered:
In the same statute, an individual is defined as a danger to others if, within their past, he/she has:
To better understand the legal implications of a therapist’s ambiguous duty to warn, one should also refer to relevant case law in North Carolina. In Gregory v. Kilbride (2002), patient John Mark Gregory had threatened to kill his wife, Kathryn Gregory, multiple times. Plaintiff Lloyd Davis Gregory, John’s father, petitioned for his son’s involuntary commitment, and John was briefly detained at Broughton Hospital. John was re-evaluated by Dr. Kevin Kilbride for a statutorily required second opinion, in which Dr. Kilbride released John from involuntary commitment. Upon his release, John arrived home and killed both Kathryn and himself. Dr. Kilbride was accused of negligently failing to adequately assess John as a danger to himself and to others and for breaching his legal duty to warn Kathryn of John’s dangerous behavior, among other grievances.
To address the failure to assess John adequately and to warn potential victims, the dangerousness requirements defined in the Mental Health, Developmental Disabilities, and Substance Abuse Act (1985), were cited in addition to North Carolina General Statute Chapter 122C-263, which notes the duties of law enforcement officers when responding to mental health crises. However, the Court found that the North Carolina General Statutes were not a public safety measure and held that, unlike the California Supreme Court in Tarasoff, North Carolina did not recognize a psychiatrist’s duty to warn third persons. In the ruling, the Court said that Dr. Kilbride did not have a legal duty to warn Kathryn of her husband’s release (Gregory v. Kilbride, 2002).
Additional relevant North Carolina case law includes Davis v. N.C. Department of Human Resources (1995) and Pangburn v. Saad (1985). Both court cases demonstrated an exception to the generally accepted idea that there is no duty to warn in NC. In Davis, it was found that when a person has been involuntarily committed for a mental illness, there is a duty placed upon the institution to exercise control over the patient "with such reasonable care as to prevent harm to others at the hands of the patient" (Davis v. N.C Department of Human Resources, 1995). In Pangburn v. Saad the NC Court of Appeals ruled that there is a duty to protect foreseeable potential victims in cases where the doctor has “control” over a patient (1985). Psychologists must find a balance between patient-confidentiality and the duty to protect and warn potential victims of harm. Past court cases suggest that although North Carolina has no explicit legal duty to warn, requirements to fulfill a duty to warn arise when a patient has been involuntarily committed and is under a doctor’s control.
Regardless of case law, there are proactive steps psychologists can take to understand their duty to warn and ensure safety measures for their clients and third parties. Some proactive steps include obtaining informed consent and explaining situations when confidentiality must be breached, developing a contingency plan in case confidentiality must be breached, and having a plan for consultation should the need arise (Hill & Panico, 2017).
Tarasoff introduced the notion that psychologists can protect potential victims through implementation of a duty to warn. Breaching confidentiality under sound ethical justification is legally permitted and can stop preventable deaths, such as that of Tatiana Tarasoff and Kathryn Gregory, from occurring. Psychologists must find a balance between patient confidentiality and the duty to protect and warn potential victims of harm, and they must be proactive in understanding the laws by which they are governed.