Gutheil and Brodsky have contributed an excellent introduction to the question of whether Tarasoff duties to warn or protect should apply to forensic examiners. (J Am Acad Psychiatry Law 38:57–60, 2010) I will add my thoughts and opinions.
Tarasoff duties and law evolved out of, and were originally intended to apply in, cases in which a patient or client obtaining treatment or other help revealed a the threat to harm a third party. More recently the AMA proclaimed (wrongly in my opinion) that forensic examinations constitute practice of medicine. Thus the question posed here arises.
The distinction between treater and examiner is not trivial. In the context of treatment the patient may view the professional as a trusted helper. By contrast the examinee in a forensic evaluation may view the examiner as the agent of an adversary bent on harming her. Any analysis of this question must keep that fact in close view. It impacts not only the examiner's analysis of the threat, but perceptions of confidentiality. The article refers to the examiner's "alliance" with the examinee, but there may be no such alliance in this setting. The examinee may be angry, hostile, fearful and distrustful, or the threat may be a manipulation in ways quite different from what might be expected in a treatment relationship. The threat might even be a way of "faking sick."
Another dimension absent from the article: The degree to which the reason for the examination relates to the threat. For example, an examinee may threaten to harm the individual(s), perhaps an employer, who referred them for evaluation, or the examinee's employer may have requested the evaluation after a less explicit threat or a display of hostility in the context of work. At the other end of the spectrum a mother undergoing parenting evaluation in the context of divorce might reveal a plan to kill a woman she believes may have stolen her new lover.
Adding a specific warning of non-confidentiality might help avoid the whole issue. The examinee might simply refrain from revealing such a threat for fear that it will be used against her. If the examiner remains ignorant of the examinees evil intent, he will be spared this dilemma. In the case where, as described above, the third party requested the examination specifically to assess risk of violence the examiner will not get off so easily, but must actively seek evidence of such intent. In my opinion such a warning should not be needed. Arguably the examinee's attorney should warn their client prior to any such examination, but of course there may not be an attorney. Regardless, preserving the safety of the intended victim should always be the priority, easily trumping any confidentiality concerns: This is not medical care. In fact such examinations are usually about money.
Hints at a threat by the examinee may demand further questioning by the examiner. How should an independent examiner pursue such questioning? It may require departure from the matter at issue in the examination. The facts that no prior relationship between examiner and examinee exists and that no subsequent relationship will evolve further discriminates such an investigation from what might occur in the context of treatment. And embarking upon such an investigations may alter the basis of the examination, perhaps irretrievably. At a minimum the examiner will need to ascertain the identity of the intended victim with sufficient specificity to enable protective actions. But the examinee might refuse. Then what must the examiner do? If the examinee threatens to kill his cousin, for example, can the examiner assume that other authorities can and will determine this individual's identity and extend protection, and can the examiner rest assured that he has discharged all duty, or more importantly, that the individual will not come to harm? The title of the article implies accurately that such a predicament could arise in independent examinations other than psychiatric. We should keep in mind too that most non-psychiatric physicians have little training and less skill in assessment of risk of violence.
The safety of an independent examiner might be at risk more so than that of a treater. The examiner must first protect herself. The examiner must make decisions based on different kinds of knowledge. Although the examiner may have reviewed extensive records not typically accessed by a treater, the examinee might be more open and honest with someone perceived as a potentially helpful advocate rather than adversary.
There should be no duty to inform the attorney of the examiner's potential duty to warn or protect. Attorneys should be cognizant of any such duty of the examer. An attorney restricted by privilege could still advise the physician as to how to proceed.
The physician's job is to evaluate (forensic) or to diagnose and treat (clinical) not to protect others from potential violence. That is a job for law enforcement, so informing the examinee's treating professional(s) as the authors suggest might be tantamount to the blind leading the blind. And this assumes that such a treating professional exists, which may not be the case.
If you find yourself in such a predicament apply the Golden Rule. Ask yourself what you would want another examiner to do if the intended victim were yourself or a loved one. And judges, juries and lawmakers should also ask themselves whether they would want that professional to hesitate to warn or protect themselves or a loved one out of fear of professional or legal consequences arising out of such protective action. Attempting to protect an intended victim should arise, not from statutory duty or professional ethics but from "a normal sense of personal and professional responsibility."