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Old March 13, 2009, 10:56 PM   #69
fomalley
Senior Member
 
Join Date: February 14, 2006
Location: Texas
Posts: 111
Rights versus risk

First, in the Wahlberg case there's not much argument about the fact that the faculty member overreacted. To a reasonable person there wasn't evidence of a "threat," at least on the basis of what was reported.In other cases it's not so clear. People may argue with the applicability of the following situations, nevertheless . . .

Suspected child abuse:
Mental health professionals (like myself) are required by law in virtually every state to report to the proper authorities suspected child abuse. The language usually is something like "has reason to believe that a child is or has been abused." It doesn't mean I have to have evidence that would hold up in court, only that I have "reason to believe." Reporting child abuse is not only expected of me, but also of physicians, nurses, teachers, LEOs, and others. In the case of child abuse the requirement supersedes the confidentiality expectation between client and provider of services. Providers who make such reports in good faith are usually protected from liability (being sued by the client) in such cases.

Duty to warn:
Duty to warn statutes have to do with (again) mental health professionals' responsibility to warn potential victims if (again) "they have reason to believe" that a client is intending to harm the potential victim. The threat must be judged to be imminent or highly likely because this also involves overriding the confidentiality of a client. Some states (e.g., Texas) allow these reports but do not mandate them. In some other states such reports are required by law. In Texas the provider is not protected from liability. You can be sued if you don't report (and a targeted victim is injured or killed), and you can be sued if you do report (and violate confidentiality). Case law is murky.

My reason for going into all this is that these complicated laws address (sometimes not very well) the problems of protecting the individual's rights to privacy and freedom from harrassment on the one hand, and protecting the safety of people for whom there is a substantial risk of harm on the other. This is precisely the kind of dilemma that Vanya was trying to point out in the previous posts.

We can probably all agree that there was apparently no evidence of substantial risk to anyone in the Wahlberg case. The faculty member made a mistake and might be vulnerable to law suit from Wahlberg (but what do I know about that? I'm not a lawyer). Other situations are much more difficult to balance - rights versus risk. And, as Glenn Meyer has pointed out the assessment of risk (in terms of potential for violence) is complicated.

Last edited by fomalley; March 13, 2009 at 11:00 PM. Reason: incomplete post
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