Have "duty to warn" laws backfired?

Did a law intended to prevent violence and improve safety backfire? Given that state duty to warn laws have always raised concerns about balancing patient privacy and confidentiality with public safety, have the laws backfired by discouraging patients and doctors from addressing what needs to be addressed? One study suggests they may have:

Doing Their Duty: An Empirical Analysis of the Unintended Effect of Tarasoff v. Regents on Homicidal Activity
Griffin Edwards
Journal of Law and Economics, Vol. 57, No. 2 (May 2014), pp. 321-348

Abstract:

The seminal ruling of Tarasoff v. Board of Regents of the Universities of California enacted a duty that required mental health providers to warn potential victims of any real threat to life made by a patient. Many have theorized that this required breach of confidentiality may have adverse effects on effective psychological treatment — but the issue remains unaddressed empirically. Because of the presence of duty-to-warn laws, patients might forgo mental health treatment that would prevent violence. Using a fixed-effects model and exploiting the variation in the timing and style of duty-to-warn laws across states, I find that mandatory duty-to-warn laws cause an increase in the homicide rate of .4, or 5 percent. These results are robust to model specifications and falsification tests and help to clarify the true effect of state duty-to-warn laws.

Here’s an excerpt from the paper, courtesy of Dr. Ken Pope:

Duty to warn laws change the incentives of both the patient and the doctor.

The original intention of the law was to deter dangerous patients from committing heinous crimes, but what actually happened was that the law changed the incentives to the patient and the doctor such that the patient has incentive to withhold homicidal tendencies, and the doctor has incentive to not explore homicidal tendencies.

In addition, these laws increase the liability to health professionals and incentivize those professionals to not treat the most at risk patients, or at very least make the current state of the law abundantly clear to the patient as to suggest suppression of the most dangerous statements leaving the psychologist in liability-free ignorance to the true mental state of the patient.

As a result the mental help needed to treat the patient is foregone, and all too often violence ensues.

One study is just that, of course – one study. But it certainly suggests we need more empirical assessment of whether the state laws have backfired, and if so, what we might need to do going forward.

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