9 LEGAL ANDETHICALISSUES 183
the client is an adult, however, such discussion re-
quires a signed release of information. In the case of
minor children, signed consent is not required to in-
form parents or guardians about the use of restraint
or seclusion. Providing the family with information
may help prevent legal or ethical difficulties. It also
keeps the family involved in the client’s treatment.
DUTY TO WARN THIRD PARTIES
One exception to the client’s right to confidentiality is
the duty to warn,based on the California Supreme
Court decision in Tarasoff vs. Regents of the Univer-
sity of California(Box 9-3). As a result of this decision,
mental health clinicians have a duty to warn identifi-
able third parties of threats made by clients, even if
these threats were discussed during therapy sessions
otherwise protected by privilege. Based on the Tara-
soff decision, many states have enacted laws regard-
ing warning a third party of threats or danger. The
clinician should ask four questions to determine if a
duty to warn exists (Felthous, 1999):
- Is the client dangerous to others?
- Is the danger the result of serious mental
illness? - Is the danger imminent?
- Is the danger targeted at identifiable victims?
For example, if a man were admitted to a psychi-
atric facility stating he was going to kill his wife, the
duty to warn his wife is clear. If, however, a client with
paranoia were admitted saying, “I’m going to get them
before they get me” but providing no other informa-
tion, there is no specific third party to warn. Decisions
about the duty to warn third parties usually are made
by psychiatrists or by qualified mental health thera-
pists in outpatient settings.Insanity Defense
One legal issue that sparks controversy is the insan-
ity defense with insanityhaving a legal meaning but
no medical definition. The argument that a person
accused of a crime is not guilty because that person
cannot control his or her actions or understand the
difference between right and wrong is known as the
M’Naghten rule. When the person meets the criteria,
he or she may be found not guilty by reason of insan-
ity. This defense is used in only 1% of all criminal
cases and is successful in only 25% of those cases
(Rolef & Egendorf, 2000). Nevertheless, 13 states
have a law allowing a verdict of guilty but insane.
Ideally this means that the person is held responsi-
ble for the criminal behavior but can receive treat-
ment for mental illness. Critics of this verdict, in-
cluding the American Psychiatric Association (APA),
argue that people do not always receive needed psy-
chiatric treatment and that this verdict absolves the
legal system from its responsibility.Nursing Liability
Nurses are responsible for providing safe, competent,
legal, and ethical care to clients and families. Profes-
sional guidelines such as the American Nurses Asso-
ciation’s Code of Ethics for Nurses with Interpretive
Statements(2001) and the APA’s Scope and Stan-
dards of Psychiatric-Mental Health Nursing Practice
(2000) outline the nurse’s responsibilities and provide
guidance (see Chap. 1). Nurses are expected to meet
standards of care,meaning the care that they pro-
vide to clients meets set expectations and is what any
nurse in a similar situation would do. Standards of
care are developed from professional standards (cited
above), state nurse practice acts, federal agency regu-
lations, agency policies and procedures, job descrip-
tions, and civil and criminal laws.TORTS
A tortis a wrongful act that results in injury, loss,
or damage. Torts may be either unintentional or
intentional.Box 9-3
➤ TARASOFF VS. REGENTS OF THE
UNIVERSITY OFCALIFORNIA(1976)
In 1969, a graduate student at the University of Cali-
fornia, Prosenjit Poddar, dated a young woman named
Tatiana Tarasoff for a short time. After the brief rela-
tionship ended, Poddar sought counseling with a psy-
chologist at the university. He confided to the therapist
that he intended to kill his former girlfriend when she
returned from Brazil at the end of the summer. The
psychologist contacted the university campus police,
who detained and questioned Poddar. He was released
because he appeared rational, promised to stay away
from Tarasoff, and claimed he would not harm her.
Two months later, shortly after her return from Brazil,
Tatiana Tarasoff was murdered by Poddar on Oct. 27,- Her parents sued the University of California,
claiming that the therapist had a duty to warn their
daughter of Poddar’s threats. The California Supreme
Court concluded that the protective privilege ends
where the public peril begins.
Mason, T. (1998). Tarasoff liability.International Journal of
Nursing Studies, 35(1/2), 109–114.