The Impact of ‘Duty to Warn’ on Countering Violent Extremism Diversion and Intervention Programs

Michael Ward

EXECUTIVE SUMMARY

As the threats of homegrown violent extremists have increasingly become a reality, the federal government has created a countering violent extremism (CVE) program to fill the pre-criminal space. Elements of the CVE program are designed to add the missing preventative pieces to traditional methods. The four main parts of the U.S. CVE design are community engagement, education on radicalization, counter narratives, and intervention programs designed to deter or re-direct individuals from a path to radicalization. These parts are the same basic components of the most successful precursor models, namely gang diversion[1] and substance abuse diversion programs.[2]

Law enforcement (LE) plays an integral role in CVE, but the effort also relies heavily on other participants and stakeholders. Mental health practitioners must play a critical role in both the intervention and education segments of CVE by providing essential services, detecting those at risk, and educating others on the radicalization process. While LE and mental health practitioners represent two professions dedicated to helping others, a mutual understanding or cooperationhashistoricallybeen lacking.[3]This conflict of perceived interests and obligations has slowed meaningful collaboration in the CVE intervention realm.

How can mental health providers treat or divert individuals from the path to radicalization but still share risk assessments and intelligence with LE when patients pose a threat to others? CVE programs involved in intervention and diversion need a mechanism or policy in place that facilitates the notification of LE authorities when a diversion practitioner suspects that the client is not responding to diversion efforts or a determination is made that the individual presents a risk to others.

The beginning steps involve an understanding of the legal environment that applies to the effort. Mental health practitioners are bound by federal and state laws that may restrict or facilitate the disclosure of privileged personal health information (PHI).

  1. Medical Record Confidentiality

In reference to medical confidentiality laws, it is imperative that practitioners understand the existence of both the federal Health Insurance Portability and Accountability Act (HIPAA) law and specific state laws. In relation to HIPAA, stakeholders must understand that the HIPPAPrivacy Rule only identifies two mandatory disclosures of PHI, to the patient, and to Department of Health and Human Services (DHHS) for auditing purposes. The remaining exceptions provide permissible conditions for mental health practitioners to share information. In terms of CVE, the two applicable exceptions to confidentiality when a mental health practitioner may disclose information are located in paragraphs (j) and (k) of the HIPAA Privacy Rule.[4]Paragraph (J) allows a medical provider (mental health professional) to disclose PHI when it is “necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public.”[5]Paragraph (K) presents a broader exception to the federal law in that it allows for the disclosure of PHI to protect national security. The paragraph allows for the disclosure to “authorized federal officials” for the purpose of conducting “lawful intelligence, counter-intelligence, and other national security activities.”[6]It is important to note that these exceptions to federal law are permissive and do not require the disclosure of PHI. It is clear, however, that mental health practitioners involved in intervention may, under federal law, disclose otherwise protected information if their client poses a threat of violence.

Like the Privacy Rule, Maryland state laws on medical record confidentiality are permissive in nature. Maryland law is broader than the federal law in regards withwhom PHI may be shared. Maryland law allows for the disclosure of PHI to any government agency conducting authorized actions (as described by law). Practitioners will be challenged when blending state and federal law. Maryland law also allows for the release of information for an investigative process. The law does stipulate that the receiving agency must have written policies in place to protect the information. Many law enforcement (LE) agencies do not have written procedures for the protection and safe storing of PHI. As a result, LE agencies involved in CVE actions must create these types of policies.

Practitioners in Maryland must also understand that they must disclose, or not disclose, PHI in compliance with the law to be immune from civil action.

CVE programs may also use consent to share information. Consent is the easiest and cleanest practice that may address the issue of communication among stakeholders. The process must include a written waiver completed by the client. The waiver must include the length of the consent and under what circumstances it may be revoked. Under Maryland law, the consent process is described under §4-303.[7]

  1. Duty to Warn and Protect

As with medical confidentiality laws, training on duty to warn and protect laws will be critical for practitioners involved in CVE intervention and diversion. Mental health professionals working with CVE programs should already be well versed on the ethical and legal conditions imposed upon their work. The practitioners may not, however, have experience working with other professionals from other disciplines. They also may not be well versed on the exceptions to confidentiality in relation to the threat presented by radicalized persons.

The terms “duty to warn” and “duty to protect” were born of a series of incidents, and subsequent legal maneuvers, in California in the late-1960s and mid-1970s. The events of concern were litigated in the California case of Tarasoff v. Regents of University of California.[8]

Asduty to warn and duty to protect laws reside at the state level, practitioners must be aware of the laws of the state where they are practicing. Additionally, many laws are written in a broad manner thatdoes not clearly articulate what is forbidden, mandated, or allowed. Many of these laws, such as Maryland’s, allow for discretion. Mental health practitioners must have access to legal experts to assist in deciphering and applying the law, which is especially important when situations are frequently not the same.

Maryland is a mandatory duty-to-protect state. The affirmative nature of the duty may differ from other states in that it provides for options forwhich a therapist may act and does not specifically dictate which option the therapist must choose. The statute is located in Maryland’s Courts and Judicial Proceedings Section §5-609.[9]Section (b) outlines the mandated duty to protect as occurrences when a mental health care provider is aware that a patient is capable of violent behavior against a known victim or group of victims. The statue provides immunity from legal or disciplinary action if the provider for discharge of the duty to warn or protect. Section (b) also describes the manner in which a provider may come to know of the threat posed by a patient as the patient’s spoken word, writing, or conduct.[10]

Section (c) (2) provides the options for the discharge of the duty that a provider may take. The statue allows for discretion on the part of the provider to either seek a commitment forthe patient, construct a treatment plan to address the potential violence, inform a LE agency of the danger posed by the patient, or warn the intended victim(s). If the provider decides to provide a warning to LE or the intended victim(s), the stature delineates that the warning must include the nature of the threat, the identity of the patient, and the identity of the intended victim(s). As a result, Maryland’s law is both a duty to warn and a duty to protect statute. The law is mandatory in requiring the therapist to take action to protect, but allows discretion in how the provider discharges the duty. The law also states that the actions taken by the provider must be both reasonable and timely.[11]

Mental health practitioners working with CVE programs within the state of Maryland are thus bound by state law to protect third parties from the actions of their clients. The law does, however, provide a certain amount of discretion in how the practitioner addresses the threat. SinceCVE programs are collaborative efforts, mental health practitioners may rely on advice and input from other disciplines.

  1. CVE Structure Models

The Building Resistance againstViolent Extremism (BRAVE) model of CVE is currently operating in Montgomery County, Maryland, and is expected to expand to other jurisdictions.[12]

According to its strategic plan, the BRAVE model in Montgomery County describes itself as a “collective impact initiative” (CII).[13]“Collective Impact is a framework to tackle deeply entrenched and complex social problems. It is an innovative and structured approach to making collaboration work across government, business, philanthropy, non-profit organizations and citizens to achieve significant and lasting social change.”[14]The idea of a CIIwas first written about in the Stanford Social Innovation Review in 2011. According to the article, five key elements are needed for a successful program: a common agenda, shared measurements systems, mutually reinforcing activities, continuous communication, and a backbone support organization.

Figure 1.Collective Impact Initiative.[15]

CIIs are models that may be applied to organizational structures to ensure that practitioners are working together to achieve a common goal. The BRAVE model is currently the only true community led CVE initiative in existence.

The BRAVE model also calls for the creation of an intervention task force to oversee intervention efforts. While the task force is not currently being used, it is envisioned to work in the same manner as a multi-disciplinary team (MDT).[16]The MDT approach identifies practitioners with critical responsibilities to an issue, and brings those practitioners together to form a team. The practitioners represent agencies thathave a stake in the solution of the challenge. The practitioners are brought together as subject matter experts on their aspect or interest in the issue. The goal is to form a team of experts where each expert represents a different discipline for the purpose of collaborating on complex challenges. One of the assumptions of the effort is that individual practitioners would not benefit from the expertise of team members from different disciplines if the team was not formed. The practitioners represent each of their disciplines and work to collaborate the efforts of their organizations with the partner agencies. The goal is to create a common plan to overcome a challenge and identify the role of each discipline. MDTs have been used in the United Stated for several decades, with a high level of success, in the area of physical and sexual child abuse. The MDT approach was first applied to child sexual abuse in the 1980s by the National Children’s Advocacy Center (NCAC) in Huntsville, Alabama.[17]MDTs are currently used in Montgomery County to coordinate child abuse investigations.

CVE programs should use structural models similar to CIIs and MDTs to facilitate the cooperation of stakeholders from different disciplines. A structure similar to a MDT is needed to manage the screening and service plan of persons receiving assistance in intervention programs. MDTs should be led by mental health practitioners who possess the training and experience needed to access and manage treatmentproperly. The teams should also include legal professionals and LE to manage the balance between successful treatment and public safety.

 

[1] James C. Howell, “Gang Prevention: An Overview of Research and Programs, Juvenile Justice Bulletin,” Office of Juvenile Justice and Delinquency Prevention, 2010, 12, http://eric.ed.gov/?id=ED 518416.

[2] Jason Payne, Max Kwiatkowski, and Joy Wundersitz, Police Drug Diversion: A Study of Criminal Offending Outcomes, Research and Public Policy Series, no. 97 (Canberra: Australian Institute of Criminology, 2008), xi.

[3] James R. Corbin, “Confidentiality & the Duty to Warn: Ethical and Legal Implications for the Therapeutic Relationship,” The New Social Worker, April 23, 2014, 1, http://www.socialworker.com/ api/content/f6758dd1-7700-3ccb-95ab-96de65ea6fcd/.

[4]U.S. Government, 45 CFR Part 164 Subpart E—Privacy of Individually Identifiable Health Information (Washington, DC: Government Printing Office, n.d.), 764–765, accessed August 6, 2016, https://www.gpo.gov/fdsys/pkg/CFR-2007-title45-vol1/pdf/CFR-2007-title45-vol1-part164-subpartE.pdf.

[5]Ibid., 764.

[6]Ibid., 765.

[7]State of Maryland, 22. Medical Records Act–Duty to Hold Confidential and Duty to Disclose a Medical Record, Health-General Article § § 4-301–4-309, 8-601 (Baltimore, MD: Maryland Department of Mental Health and Hygiene, n.d.), accessed September 12, 2016, http://dhmh.maryland.gov/psych/pdfs/ Medicalreports.pdf.

[8] “Tarasoff v. Regents of University of California—17 Cal.3d 425—Thu, 07/01/1976|California Supreme Court Resources,” accessed August 28, 2016, http://scocal.stanford.edu/opinion/tarasoff-v-regents-university-california-30278.

[9] “Courts and Judicial Proceedings, Section 5-609,” accessed September 10, 2016, http://mgaleg. maryland.gov/webmga/frmStatutesText.aspx?article=gcj&section=5-609&ext=html&session=2015RS& tab=subject5.

[10]Ibid.

[11] “Courts and Judicial Proceedings, Section 5-609.”

[12] World Organization for Resource Development and Education (WORDE), The Building Resilience against Violent Extremism (BRAVE) Model—A Collective Impact Initiative That Increases Public Safety and Social Cohesion (Montgomery Village, MD: World Organization for Resource Development and Education (WORDE), 2016, https://drive.google.com/file/d/0B8ZeOqiUkpq2MUZheTd5eUNKRVk/ view?usp=sharing&usp=embed_facebook.

[13]Ibid., 12.

[14] “The Collective Impact Framework | Collaboration for Impact,” accessed October 16, 2016, http:// www.collaborationforimpact.com/collective-impact/.

[15]“The Collective Impact Framework | Collaboration for Impact.”

[16] World Organization for Resource Development and Education (WORDE), The Building Resilience against Violent Extremism (BRAVE) Model—A Collective Impact Initiative That Increases Public Safety and Social Cohesion, 16.

[17] “National Children’s Advocacy Center History,” accessed July 11, 2016, http://www.nationalcac. org/table/about/history/.

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