Duty to Warn and Protect: Not in Texas

By Barbee, Phillip W.; Combs, Don C. et al. | Journal of Professional Counseling, Practice, Theory, & Research, Spring 2007 | Go to article overview

Duty to Warn and Protect: Not in Texas


Barbee, Phillip W., Combs, Don C., Ekleberry, Fabiola, Villalobos, Susanna, Journal of Professional Counseling, Practice, Theory, & Research


Contrary to the 1976 California Supreme Court decision in the renowned Tarasoff case, the Texas Supreme Court rendered a 1999 opinion (Thapar v. Zezulka) that mental health providers in Texas do not have a duty to warn and protect their clients' known and intended victims. This decision reflected the intent of the Texas court not to violate existing state confidentiality statutes that permit, but do not require, disclosure of intent to harm to medical or law enforcement personnel only. Other than the reporting of positive HIV results or suspected child abuse, mental health providers in Texas should proceed with caution in revealing confidential information to anyone for any reason, even when the limits of confidentiality are reached.

The 1976 ruling by the California Supreme Court in the now famous Tarasoff case (Tarasoff v. Regents of the University of California) established a precedent in that state that mental health professionals have an obligation to warn and protect third parties when a client reveals an intent to harm (Corey, Corey, & Callanan., 2007). Although this ruling has jurisdiction only in California, a duty to warn and protect doctrine, as established by Tarasoff, is considered a national standard or mandate by many therapists (Corey, et.al., 2007).

Interestingly, Texas does not adhere to the precedent set by Tarasoff. To the contrary, the opinion in Thapar v. Zezulka, rendered by the Texas Supreme Court in 1999, stipulated that mental health providers do not incur a duty to warn and protect (Dalrymple, 1999; Grinfeld, 1999; Texas Supreme Court, 1999). Specifically, the opinion written for a unanimous court by Justice Craig T. Enoch stated that "we refrain from imposing on mental health professionals a duty to warn third parties of a patient's threats" (FNl) (Texas Supreme Court, 1999).

Issue of Confidentiality

The finding in Thapar v. Zezulka is based on the justices' reluctance to violate various state confidentiality statutes enacted by the Texas Legislature governing mental health professionals. In his opinion, Justice Enoch stated:

... we decline to adopt a duty to warn now because the confidentiality statute governing mental-health professionals in Texas makes it unwise to recognize such common-law duty (FN 14.17) (Texas Supreme Court, 1999).

Justice Enoch continued with:

The Legislature has chosen to closely guard a patient's communications with a mental-health professional. In 1979, three years after Tarasoff issued, the Legislature enacted a statute governing the disclosure of communications during the course of mental-health treatment (FN16). The statute classifies communications between mental-health "professional(s)" and their "patient(s)/client(s)" as confidential and prohibits mental-health professionals from disclosing them to third parties unless an exception applies. (FN17) (Texas Supreme Court, 1999).

The "exceptions" to which the court is referring are contained in two specific statutes: 1979 Texas Gen. Laws at 514-4(b)(2) and the current Texas Health & Safety Code 611.044(a)(2). The former (1979) Texas Gen. Laws at 514-4(b)(2) states:

(b) Exceptions to the privilege of confidentiality, in other than court proceedings, allowing disclosure of confidential information by a professional, exist only to the following:...

(2) (sic) to medical or law enforcement personnel where the professional determines that there is a probability of imminent physical injury by the patient/client to himself or to others, or where there is a probability of immediate mental or emotional injury to the patient/client....(FN21) (Texas Supreme Court, 1999).

The latter (Texas Health and Safety Code 611.004(a)(2)) states:

a professional may disclose confidential information to medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the patient to the patient or others or there is a probability of immediate mental or emotional injury to the patient. …

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