From posts to protection: Ethical considerations regarding forensic psychiatrists and a duty to warn based on social media

Increasing use of social media in forensic mental health evaluations will lead to new challenges that must be resolved by forensic practitioners and the legal system. One such dilemma is the discovery of information that would typically trigger a legal duty and professional ethics obligation for mental health professionals to breach doctor-patient confidentiality to promote public safety and prevent harm to vulnerable third parties. Although the law and professional organizations offer clear guidance for practitioners in the treatment role, there is currently no clarity from the law or instruction from professional organizations on what mental health professionals should do if they discover such information during a confidential forensic evaluation. For example, a forensic evaluator may find evidence on social media of an evaluee's threats to seriously harm others, abuse of children and the elderly, or severely impaired driving. There are no clear guidelines for how a forensic psychiatrist should respond in these complicated situations. We review the legal concepts and historical evolution of confidentiality, privilege, and mandated reporter duties that forensic practitioners should consider in these legally ambiguous situations. Finally, we discuss ethics frameworks practitioners can implement to determine their most ethical course of action when faced with such dilemmas.

Avoiding Liability and Other Legal Land Mines in the Evolving Genomics Landscape

This article reviews evolving legal implications for clinicians and researchers as genomics is used more widely in both the clinic and in translational research, reflecting rapid changes in scientific knowledge as well as the surrounding cultural and political environment. Professionals will face new and changing duties to make or act upon a genetic diagnosis, address direct-to-consumer genetic testing in patient care, consider the health implications of results for patients' family members, and recontact patients when test results change over time. Professional duties in reproductive genetic testing will need to be recalibrated in response to disruptive changes to reproductive rights in the United States. We also review the debate over who controls the flow of genetic information and who is responsible for its protection, considering the globally influential European Union General Data Protection Regulation and the rapidly evolving data privacy law landscape of the United States.

Tarasoff in Missouri: The jurisprudence of a mental health provider's duty to warn and protect non-patients of potential risks from patients

In 1976, the Supreme Court of California issued its well-known Tarasoff Principle. From this principle, other courts found a duty to warn, and some found more than just a duty to warn, a duty to protect. As courts in other states adopted a version of the Tarasoff Principle, they issued a wide variety of third-party liability rules. In light of the dynamic, everchanging Tarasoff jurisprudence in the United States and recent relevant appellate court opinion in Missouri, a timely updated summary and update of Tarasoff-related jurisprudence in Missouri is warranted. In the present analysis, we compiled the four appellate court decisions that pertained to the questions of Tarasoff-like third-party liability in the State of Missouri: Sherrill v. Wilson (1983), Matt v. Burrell (1995), Bradley v. Ray (1995), and Virgin v. Hopewell (2001). We reviewed all legal measures for clinicians to protect nonpatients in Missouri, not just those that relate to protecting nonpatients from violence as in a Tarasof-like scenario. Thus, this paper concisely provides a compendium of such options and allows for a meaningful comparison of which legal, protective measures are mandatory and which are permissive, thereby evoking the question of whether measures of protecting nonpatients from a patient's violent acts ought to be mandatory duties or permissive application of professional judgment.

A 20-year follow-up survey of police officers' experience with Tarasoff warnings: How law enforcement reacts to clinicians' duty to protect

Since the Tarasoff case of 1976, mental health professionals are recognized to have a "duty to protect" third-party targets from violence-threatening patients, but little is known about what happens after clinicians warn law enforcement. In 2000, Huber et al. published a study that surveyed Michigan police about "Tarasoff warnings." We conducted a 20-year follow-up study, inviting all Michigan police and sheriff departments to participate. There were no significant differences between studies about knowledge of Tarasoff-related policies, which was low in both surveys. We found significant decreases in the number of officers who had ever intervened due to warning calls. Of the survey respondents, 83% supported documenting warning calls. For those who received warnings, 96% followed up with at least one intervention. In both studies, notifying other officers was the most common action taken. 56% said they would take action to remove a firearm. We identified opportunities for training law enforcement.

Florida Law Enforcement Policies for and Experience With Tarasoff-Like Reporting

Mandatory duty to warn law enforcement for mental health professionals in Florida took effect on July 1, 2019, as part of the recommendations from the Marjory Stoneman Douglas School (Parkland) Shooting Commission's report. Prior to this, Florida had been a permissive Tarasoff state. Although this change was intended to promote public safety, there is scant literature on the interactions between mental health providers and law enforcement related to Tarasoff situations. The objective of this study is to determine the degree to which Florida law enforcement agencies have knowledge, experience, and policies dealing with a serious threat made by a patient. An invitation to participate in a survey was distributed to police departments, sheriffs' offices, and 911 stations using email and traditional paper mail. The response rate was 11 percent (47 of 416) to an emailed questionnaire and 22 percent (82 of 369) to a paper-based follow-up survey. The surveys were completed by 31 percent (129 of 416) of potential respondents. Between 80 and 90 percent of all agencies have policies and procedures on what to do if a warning call from a mental health provider is received, which, for the majority of respondents, was the same policy as if notified about a suicidal individual.

Duties When an Anonymous Student Health Survey Finds a Hot Spot of Suicidality

Public health agencies regularly survey randomly selected anonymous students to track drug use, sexual activities, and other risk behaviors. Students are unidentifiable, but a recent project that included school-level analysis discovered a school with alarmingly prevalent student suicidality. Given confidentiality protocols typical of surveillance, the surveyors were uncertain whether and how to intervene. We searched literature for duties to warn at-risk groups discovered during public health surveillance, but we found no directly applicable guidance or cases. Reasoning by analogy, we conclude that surveyors should contact the school's leaders to call attention to its outlier status, but public warning is unwarranted. However, such an ad hoc decision to issue a warning, even if only to school leaders, raises significant practical, legal and ethical issues. National public health and education associations should produce guidance that clarifies ethical and legal duties owed to schools and students involved in population health-risk surveillance.

Air Pollution Disasters: Liability Issues in Negligence Associated With the Provision of Personal Protective Interventions (Facemasks)

Disasters may impact air quality through the generation of high levels of potentially pathogenic particulate matter (PM), for example, in a volcanic eruption. Depending on the concentrations of particles in the air, their size and composition, and the duration of exposure, high levels of PM can create significant public health issues. It has been argued that air pollution, in and of itself, is a public health crisis. One possible intervention to reduce exposure to high levels of PM during an air pollution disaster (APD) is using facemasks. However, agencies may be reluctant to recommend or distribute facemasks for community use during APDs for a variety of reasons, including concerns about liability. There has been no analysis of these concerns. This paper analyzes whether agencies may have a legal duty of care in negligence to provide warnings about the health risks associated with APDs and/or to recommend facemasks as a protective mechanism for community use to reduce exposure to PM. It is also the first to examine the potential for liability in negligence, when a decision is made to distribute facemasks for community use during an APD and the receiver alleges that they sustained a personal injury and seeks compensation.

When to break the news and whose responsibility is it? A cross-sectional qualitative study of health professionals' views regarding disclosure of BRCA genetic cancer risk

OBJECTIVES

Disclosure of a hereditary condition in the family poses notable challenges for patients who often seek the assistance of genetic health professionals (GHPs). This study aimed to investigate GHPs' opinions about the ideal time for disclosure to offspring and their responsibility to at-risk relatives.

DESIGN

Cross-sectional qualitative study.

SETTING

Genetic familial cancer clinics related to mostly secondary and tertiary care hospitals and centres in urban, regional and rural areas across all states of Australia.

PARTICIPANTS

GHPs (N=73) including clinical geneticists, genetic counsellors, medical specialists, nurses, surgeons and mental health specialists (eg, psychiatrists, psychologists) who had worked with BRCA1 and BRCA2 families for an average of 9 years.

RESULTS

Focus groups and interviews were transcribed and analysed thematically. GHPs perceived that life stage, maturity, parents' knowledge and capacity to disseminate information influenced parent-offspring disclosure. In general, GHPs recommended early informal conversations with offspring about a family illness. GHPs considered that facilitation of disclosure to relatives using counselling strategies was their responsibility, yet there were limitations to their role (eg, legal and resource constraints). Variability exists in the extent to which genetic clinics overcome challenges to disclosure.

CONCLUSIONS

GHPs' views on the ideal time for the disclosure of genetic risk are generally dependent on the patient's age and relative's ability to disclose information. A responsibility towards the patient and their at-risk relative was widely accepted as a role of a GHP but views vary depending on legislative and specialty differences. Greater uniformity is needed in genetic procedural guidelines and the role of each discipline (eg, geneticists, genetic counsellors, oncologists, nurses and mental health specialists) in genetic clinics to manage disclosure challenges.

The duty to warn at-risk relatives-The experience of genetic counselors and medical geneticists

Studies published over 15 years ago surveyed genetic counselors (GC) and medical geneticists (MG) to examine their clinical experiences with the conflict of "duty to warn" versus patient confidentiality. Federal and state laws pertaining to medical professionals' duty to warn have since been implemented following the publications of these studies. Using a merged version of surveys employed in the prior studies, this study seeks to understand clinicians' current decision-making process when faced with patient refusal to inform at-risk relatives, as well as their familiarity with and opinions of laws and guidelines covering this issue. Consistent with the previous studies, the majority of MG and almost half of GC experience patient refusal. Significantly, fewer MG and GC believe they had a duty to warn their patients' relatives of genetic risk. Only 8% of participants believe current guidelines effectively address the issue of duty to warn. Participant awareness of federal or state laws regulating the disclosure of genetic information remains low. The conflict of duty to warn remains a shared experience among genetics professionals, and resources are needed to facilitate informed decision-making. Participants' opinions of current policies and clinical decisions may guide professional actions regarding duty to warn.

Therapeutic Privilege Is No Defence

Therapeutic privilege is conceptualised as a defence to a negligence claim available to a medical practitioner, where the negligence alleged is a failure to warn. It affords a practitioner an opportunity to prove that the failure to warn was because of a belief that disclosure of a material risk would prove damaging to a patient. Since its endorsement by the High Court in 1992, the concept has received scant judicial attention. This article explains why. The legal landscape has changed and in terms of establishing normative causation, the nature of the duty to warn and its underlying policy provision supports a judgment strongly in favour of patient autonomy. Given the legal commitment to patient autonomy, together with the wider protection that a mentally competent patient has an absolute right to decide whether or not to undergo medical treatment, the concept of therapeutic privilege is redundant. Against an established claim in negligence, therapeutic privilege is no defence.

Exploring the potential duty of care in clinical genomics under UK law

Genome-wide sequencing technologies are beginning to be used in projects that have both clinical diagnostic and research components. The clinical application of this technology, which generates a huge amount of information of varying diagnostic certainty, involves addressing a number of challenges to establish appropriate standards. In this article, we explore the way that UK law may respond to three of these key challenges and could establish new legal duties in relation to feedback of findings that are unrelated to the presenting condition (secondary, additional or incidental findings); duties towards genetic relatives as well as the patient and duties on the part of researchers and professionals who do not have direct contact with patients. When considering these issues, the courts will take account of European and international comparisons, developing guidance and relevant ethical, social and policy factors. The UK courts will also be strongly influenced by precedent set in case law.

The Double Helix: Applying an Ethic of Care to the Duty to Warn Genetic Relatives of Genetic Information

Genetic testing reveals information about a patient's health status and predictions about the patient's future wellness, while also potentially disclosing health information relevant to other family members. With the increasing availability and affordability of genetic testing and the integration of genetics into mainstream medicine, the importance of clarifying the scope of confidentiality and the rules regarding disclosure of genetic findings to genetic relatives is prime. The United Nations International Declaration on Human Genetic Data urges an appreciation for principles of equality, justice, solidarity and responsibility in the context of genetic testing, including a commitment to honoring the privacy and security of the person tested. Considering this global mandate and recent professional statements in the context of a legal amendment to patient privacy policies in Australia, a fresh scrutiny of the legal history of a physician's duty to warn is warranted. This article inquiries whether there may be anything ethically or socially amiss with a potential future recommendation for health professionals or patients to universally disclose particular cancer predisposition genetic diagnosis to genetic family members. While much of the discussion remains applicable to all genetic diagnosis, the article focuses on the practice of disclosure within the context of BRCA1/2 diagnosis. An 'ethic of care' interpretation of legal tradition and current practice will serve to reconcile law and medical policy on the issue of physician disclosure of genetic results to family members without patient consent.

Professional Roles Evolve With Changing Landscape of Legal Risk

Opioid-use monitoring, medication-error prevention, and counseling/duty-to-warn issues illustrate new or emerging legal risks for pharmacists as their roles expand.

Shared liability? Consultants, pharmacists, and the emergency physician: legal cases and caveats

In caring for patients in the Emergency Department (ED), the emergency physician (EP) will often utilize consulting specialists and pharmacists. In the event of an untoward patient outcome, disagreement may arise regarding the liability of each provider. Here, we review a series of malpractice cases involving consulting physicians and pharmacists to illustrate the legal principles of physician-patient relationships and physician duty. Determination of liability in the courts will rest, in part, on whether a physician-patient relationship was formed via an "affirmative act". Consulting physicians may establish a relationship through an overt or implied agreement to participate in a patient's care, or by reviewing specific tests and studies for the purpose of diagnosis and treatment. The courts have defined the duty of the pharmacist to safely dispense medication, and have ascribed the duty to warn of medication side effects to the prescribing physician.

Environmental health research on hazards in the home and the duty to warn

When environmental health researchers study hazards in the home, they often discover information that may be relevant to protecting the health and safety of the research subjects and occupants. This article describes the ethical and legal basis for a duty to warn research subjects and occupants about hazards in the home and explores the extent of this duty. Investigators should inform research subjects and occupants about the results of tests conducted as part of the research protocol only if the information is likely to be accurate, reliable, and medically useful. Investigators should warn subjects and occupants about hazards they happen to discover while they are in the home, if a reasonable person would warn the subjects and occupants about those hazards. Investigators should not report illegal hazards discovered in the home to the authorities, unless those hazards constitute abuse or neglect of children or mentally disabled people living in the home. When investigators decide to warn research subjects and occupants about hazards in the home, they should take some steps to help them make effective use of this information, such as providing additional counselling or making a referral for remediation or medical treatment. Investigators should discuss these issues with research subjects during the informed consent process.