Duty to Protect and the “Red Flag” Option

Within the mental health professions (MHPs), an essential element for fostering trust with clients is the promise of confidentiality. Confidentiality protects clients’ right to privacy, offering them a safe place to share information that they might feel is embarrassing or risky. Confidentiality is not an absolute right. MHPs need to balance this right with the principle of protecting life and safety. Dating back to the Tarasoff (1976) case, many courts have recognized that MHPs have legal duty to protect third parties from serious, imminent, and foreseeable harm (Hall & Tardif, 2020).

When risks of violence arise, MHPs need to assess the level of risk and the most appropriate way to respond. Ideally, MHPs can work with clients voluntarily, providing crisis intervention counseling, offering support, and developing safety plans that may include informing the intended victim, ensuring the client is monitored by family or others, and ensuring the client does not have access to particular weapons or drugs. If a voluntary solution is not possible, then MHPs may consider involuntary options such as calling law enforcement, warning the victim without client permission, and initiating civil commitment to a mental health facility. Despite increased crisis assessment and intervention training among MHPs since Tarasoff, there are still many questions about the most effective ways to protect the public from clients who may pose serious risks. In the aftermath of mass gun shootings in various schools, churches, synagogues, movie theatres, shopping centers, and other public places, several states have passed “red flag laws” or Extreme Risk Protection Orders (ERPOs). ERPOs empower courts to temporarily remove firearms from individuals who pose a significant risk of harm to themselves or others. This post explores whether MHPs should consider ERPOs as an option when clients pose a risk of serious harm to others.

What Is Our Duty?

Although the codes of ethics of all mental health professions provide MHPs with guidance on how to respond when clients pose a risk to others, the language in these codes vary. For instance, Standard 1.07(c) of the National Association of Social Workers Code of Ethics (2021) states:

The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or others.

This language seems to suggest that while social workers are permitted to disclose information to prevent serious, foreseeable, and imminent harm, they are not ethically required to do so. In contrast, Standard 4.05(b) of the Ethical Principles of Psychologists and Code of Conduct of the American Psychological Association (2017) states:

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… (3) protect the client/patient, psychologist, or others from harm.

This provision allows disclosures when permitted or mandated by law. It does not state whether the risk of harm needs to be serious, foreseeable, or imminent. Standard B2a of the American Counseling Association’s (2014) Code of Ethics used the term “serious and foreseeable,” but does not require the risk to be imminent.

The laws governing disclosure to protect people from harm vary significantly from state to state. Some states use mandatory language, providing MHPs with legal duties to inform law enforcement, to warn the potential victim, or to do both. Other states use permissive language, giving MHPs discretion about when they may breach confidentiality and whether they should inform law enforcement, the intended victim, or others. Thus, it is important to check state laws to determine your legal obligations when risks of harm to others arise (see here for relevant statutes).

Note that current codes of ethics and professional regulation statutes do not specifically mention the use of ERPOs.

Potential Uses of ERPOs

ERPO statutes allow law enforcement agencies and specified others to petition the court to order temporary removal of firearms from an individual who poses significant risks. In some states, MHPs are among those allowed to petition the court. For MHPs, there may be a number of advantages of using ERPOs to protect others from harm. First, removing a firearm may be warranted in situations when civil commitment is inappropriate. Involuntary commitment is a relatively extreme intervention, restricting the individual’s right to autonomy, free movement, and choice of whether to receive services. Being committed may be traumatic, potentially leading to further stigmatization, isolation, and distress (Drabaik, 2023). Further, most civil commitments are for relatively short timeframes. In most states, the initial commitment may be prescribed for 1 to 10 days. After a court hearing for continued involuntary placement, the court may extend placement based on an MHP’s evaluation of relevant risks (Substance Abuse and Mental Health Services Administration, 2019). Generally, people are committed for periods when there is an acute risk of harm. Once the acute risk has abated, they may be returned to the community even though there continues to be some risk over a longer term. In contrast, ERPOs may be extended for up to one year, possibly reducing risks over a longer timeframe.

Potential Downsides of ERPOs

Although ERPOs may reduce risks of firearm violence, they are not a panacea. When people unable to obtain firearms lawfully, they may try to acquire them unlawfully. Alternatively, they may acquire weapons that are not covered by the ERPO. Whereas involuntary commitment ensures the person is in a monitored environment for a specific period of time, someone under an ERPO is not necessarily being monitored on an ongoing basis.

Law enforcement agencies are the most common entity that petitions for ERPOs. MHPs may be reluctant to petition for ERPOs because they may want to avoid court involvement. They may also be concerned about how their clients or others may react. Staunch proponents of the “right to bear arms” may be particularly concerned about MHPs who initiate ERPOs, seeing them as a violating this right.

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When balancing client rights to privacy and autonomy with the need to protect others from serious harm, MHPs should consider ERPOs as one option, and perhaps as an option that may be used in conjunction with others. Unfortunately, there is little research available to determine whether and when ERPOs may be preferred to civil commitment or other options. Further, some law enforcement agencies and officials are reluctant to use ERPOs even when they are legally authorized. This reluctance may be attributed to concerns about due process, the sufficiency of evidence, and potential for adverse outcomes. Protecting people from gun violence may require cooperation among many people, including clients, family members, friends, MHPs, law enforcement, teachers, and other possible sources of support (Substance Abuse and Mental Health Services Administration, 2019). It is important for them to have frank and honest discussions of the best way to manage risks, including the possible use of ERPOs as part of a comprehensive plan that promotes public safety, client dignity, and psychosocial wellbeing.

Note: The material in this post is for general information only. For current legal information or advice particular to your situation, please consult with an attorney in your jurisdiction.