Duty to warn

A duty to warn is a concept that arises in the law of torts in a number of circumstances, indicating that a party will be held liable for injuries caused to another, where the party had the opportunity to warn the other of a hazard and failed to do so. A duty to warn is a concept that arises in the law of torts in a number of circumstances, indicating that a party will be held liable for injuries caused to another, where the party had the opportunity to warn the other of a hazard and failed to do so. The duty to warn arises in product liability cases, as manufacturers can be held liable for injuries caused by their products if the product causes an injury to a consumer and the manufacturer fails to supply adequate warnings about the risks of using the product (such as side effects from pharmacy prescriptions) or if they fail to supply adequate instructions for the proper use of the product (such as a precaution to use safety glasses when using a drill). If the manufacturer fails to supply these warnings, the law will consider the product itself to be defective. A lawsuit by a party injured by a product, where the manufacturer failed to properly warn, is usually brought as a 'negligence' action, but it could be filed as a 'strict liability' claim or as a 'breach of warranty of merchantability' case. Samsung issued a warning with respect to its Galaxy Note 7 smart phone because of concerns about the product's safety. Most notably, a property owner has a duty to warn persons on the property of various hazards, depending on the status of the person on the property. For example, the property owner must warn an anticipated or discovered trespasser of deadly conditions known to the property owner, but that would be hidden from the trespasser. The property owner must warn licensees of all known hazards (whether deadly or not), and must warn invitees of all dangers that the property owner can discover through a reasonable inspection of the property. In clinical psychological practice in the United States, duty to warn requires a clinician who has reasonable grounds to believe that a client may be in imminent danger of harming himself or others to warn the possible victims. Duty to warn is among the few exceptions to a client's right to confidentiality and the therapist's ethical obligation to maintain confidential information related in the context of the therapeutic relationship. In the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct, the therapist's duty to warn is implicitly contained within the guidelines for disclosure of confidential information without the consent of the client: 'Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to … protect the client/patient, psychologist, or others from harm.' In situations when there is cause for serious concern about a client harming someone, the clinician must breach confidentiality to warn the identified victim/third party about imminent danger. Although laws vary somewhat in different states, in general, the danger must be imminent and the breach of confidentiality should be made to someone who is in a position to reduce the risk of the danger. People who would be appropriate recipients of such information would include the intended victim and law enforcement. Duty to warn is embedded in the historical context of two rulings (1974 and 1976) of the California Supreme Court in the case of Tarasoff v. Regents of the University of California. The legal case was brought by the Tarasoff family after their daughter, Tatiana Tarasoff, was murdered by Prosenjit Poddar, who had received psychological services in the university counseling center. Poddar had made it known to his psychologist, during a session, that he wanted to kill Tarasoff, and his psychologist informed the campus police, following the session, of the danger that Poddar posed to himself and others and suggested that hospitalization might be necessary. The psychologist also wrote a letter requesting assistance to the chief of campus police. Upon investigation by the police, during which Poddar was briefly detained for questioning, he was released because his mental state seemed to be stable and rational. Shortly thereafter, the director of the department of psychiatry at Cowell Hospital asked for the police to return the letter and ordered that Poddar's therapy notes should be destroyed. No one ever warned Tatiana Tarasoff. Poddar killed Tatiana Tarasoff on October 27, 1969, and her parents filed suit against several of the organizations and individuals who had been involved. The case was initially dismissed by a lower court, but her parents appealed to the California Supreme Court, which upheld the appeal in 1974 and reaffirmed the ruling in 1976. The case was settled out of court when Tarasoff's parents received a substantial sum of money. Explicit in the court's decision was the principle that the confidentiality of the therapeutic relationship is subordinate to the safety of society and its members. Despite the value and importance of protecting the client and their feelings, and thus the physician-client relationship, the court decided that the clinician's duty to society as a citizen of that society places certain limitations on the clinician's loyalty to a client's secrets, divulged in the context of the therapeutic relationship. Some have decried the court's decision as a limitation of the foundation for the therapeutic relationship and progress, the client's expectation of confidentiality. Max Siegel, a former president of the American Psychological Association, defended the therapist's right to confidentiality as sacrosanct, under any circumstances. Furthermore, he suggested that had Poddar's psychologist maintained confidentiality, instead of alerting the police, Poddar might have remained in counseling and Tarasoff's death might have been averted through Poddar's psychological treatment. Limitations to confidentiality are a critical concern for clinicians, because a relationship of trust between the therapist and client is the prerequisite context for therapeutic growth. Without the client's expectation that the therapist will honor the client's confidences divulged in the therapeutic dialogue, the client will not have the freedom to unveil the most troublesome and private issues that are matters of the utmost concern and need for intervention. Some argue that if clients cannot depend on confidentiality in all matters that are related in therapy, potentially dangerous clients, who may be most in need of psychological services, will avoid therapy, thus missing the opportunity for intervention. If a trend of restrictions on confidentiality develops in legislation, some argue that the ability of therapists and counselors to effectively practice and facilitate clients' growth may be significantly impaired.