Wisconsin Duty to Warn: When Safety Concerns Collide with Confidentiality Rules

Mental health professionals, law enforcement agencies, counties, and other public entities often face a hard practical question: what can be shared when a patient makes a credible threat against another person? The Wisconsin duty to warn may require action to protect a potential victim. At the same time, Wisconsin mental health confidentiality laws place strict limits on the disclosure of treatment records.

That tension matters because Wis. Stat. § 51.30 is Wisconsin’s primary mental health confidentiality statute. It protects treatment records created while providing services for mental illness, developmental disabilities, alcoholism, or drug dependence. Although some guidance has suggested that the Wisconsin duty to warn creates a confidentiality exception, Wisconsin case law takes a narrower approach: a warning may be necessary, but treatment records remain strongly protected.

Wisconsin Mental Health Confidentiality: A Duty to Warn Is Not a Blanket Exception

The central lesson from Wisconsin appellate decisions is straightforward: the Wisconsin duty to warn does not create a general exception to Wis. Stat. § 51.30. In other words, the existence of a threat does not authorize providers, police departments, or agencies to disclose entire treatment records, emergency detention paperwork, or related confidential documents unless a statutory exception or valid informed written consent applies.

This does not mean professionals must stay silent when someone is at risk. It means the warning should be handled carefully. In many situations, the safer approach is to give a focused warning without sending treatment records. The warning should include only the information reasonably needed to help the threatened person or appropriate authority respond.

Understanding the Wisconsin Duty to Warn

When Does the Duty Arise?

• Wisconsin recognizes a duty to warn in certain circumstances involving a credible threat to an identifiable third party.
• The duty is commonly associated with mental health professionals, including psychiatrists and psychologists, who learn of a patient’s threat during treatment.
• The question is whether harm to the third party is foreseeable if the professional fails to warn or fails to take appropriate action, such as initiating detention or commitment proceedings.
• The duty is fact-specific and should be evaluated carefully based on the nature of the threat, the identity of the potential victim, and the available protective steps.

What Should a Warning Include?

• The warning should be directed to the threatened person or to another appropriate recipient who can help protect that person.
• The purpose of the warning should be protective, not investigative, disciplinary, or informational.
• The disclosure should be limited to what is necessary to communicate the risk and enable reasonable protective action.
• Whenever possible, the warning should avoid transmitting treatment records or documents containing protected mental health information.

Wisconsin Duty to Warn Case Law and Mental Health Confidentiality Limits

Wisconsin courts have recognized both sides of this problem. On one hand, the Wisconsin duty to warn may require action when a patient presents a credible risk to an identifiable third party. On the other hand, Wisconsin mental health confidentiality law remains powerful and specific. The cases below show why providers and agencies should be cautious before equating a duty to warn with permission to release records.

Schuster v. Altenberg and the Wisconsin Duty to Warn

The starting point is Schuster v. Altenberg, 424 N.W.2d 159 (Wis. 1988). In Schuster, the Wisconsin Supreme Court recognized that a treating psychiatrist or psychologist may have a duty to warn a third person targeted by a credible threat from a patient. The case is frequently cited for the proposition that mental health providers cannot ignore foreseeable risks to identifiable third parties.

However, Schuster was a negligence case. It addressed whether a duty existed for purposes of civil liability. It did not decide whether confidential treatment records could be disclosed under Wis. Stat. § 51.30, and it did not create a new statutory exception to the treatment-records privilege.

Milwaukee Deputy Sheriff’s Association: Wisconsin Mental Health Confidentiality Still Protects Records

Milwaukee Deputy Sheriff’s Ass’n v. City of Wauwatosa, 787 N.W.2d 438 (Wis. Ct. App. 2010), illustrates the danger of disclosing too much. In that case, a deputy receiving voluntary treatment for work-related stress and anxiety reportedly told a therapist that he had thoughts of harming himself and two supervisors. The therapist contacted law enforcement, officers responded, and the deputy was detained under Wis. Stat. ch. 51.

The problem arose after the police department faxed documents to the sheriff’s department, including a police incident report and a statement of emergency detention. The deputy had not provided informed written consent for the release. The sheriff’s department later used the information in an internal investigation, and the deputy was suspended.

The Wisconsin Court of Appeals held that Schuster recognized a duty to warn but did not create an exception to Wis. Stat. § 51.30(4). The court also relied on Watton v. Hegerty, 2008 WI 74, which held that statements of emergency detention are treatment records under § 51.30(4), even when held by a police department. Because those records are privileged, disclosure generally requires informed written consent or another statutory basis.

The court emphasized an important practical distinction: the police department could have conveyed a warning without transmitting protected records. For example, a limited phone call advising that a threat had been made may have served the protective purpose without disclosing confidential treatment documents.

Daniel A. v. Walter H.: Courts Cannot Add Exceptions to the Statute

Daniel A. v. Walter H., 195 Wis. 2d 971, 537 N.W.2d 103 (Ct. App. 1995), reinforces the same principle. The court rejected the idea that Schuster authorized courts to add public policy exceptions to the treatment-records privilege in Wis. Stat. § 51.30. If an exception exists, it must come from the statute—not from a general appeal to public policy.

Why Wisconsin Mental Health Confidentiality Matters for Providers, Counties, and Law Enforcement

The practical risk is over-disclosure. A provider, county agency, or police department may assume that once the Wisconsin duty to warn is triggered, records may be shared too. Wisconsin mental health confidentiality law requires a more careful analysis. A warning communication and a records disclosure are not the same thing.

A narrowly tailored warning may be defensible where a credible and identifiable threat exists. But forwarding emergency detention forms, treatment records, clinical notes, or investigative reports containing protected treatment information may violate Wis. Stat. § 51.30 unless a specific statutory exception applies or the patient has provided informed written consent.

Client Examples: How Wisconsin Duty to Warn Issues Can Arise in Practice

The following examples show how Wisconsin duty to warn and Wisconsin mental health confidentiality issues can come up for organizations that handle sensitive mental health information. These examples are general and should not be treated as legal advice for any specific situation.

Example 1: A County Crisis Worker Receives a Specific Threat

A county crisis worker speaks with an individual who makes a specific threat against a named family member. The worker may need to act quickly to reduce the risk. The legal question is not simply whether someone should be warned, but how much information may be shared. A limited warning to the threatened person or appropriate protective authority may be appropriate, while sending treatment notes or crisis records could raise Wisconsin mental health confidentiality concerns.

Example 2: A Police Department Handles Emergency Detention Paperwork

A police department responds to a mental health crisis and completes emergency detention paperwork. Later, another agency asks for copies of the records because the individual allegedly threatened an employee. Even if the Wisconsin duty to warn is implicated, the department should be cautious before forwarding the documents. Emergency detention records may be protected treatment records, and a limited oral warning may be legally safer than sending the paperwork itself.

Example 3: A Mental Health Provider Learns of a Workplace Threat

A therapist learns during treatment that a patient has made a credible threat involving a workplace supervisor. The provider may need to consider whether the supervisor, employer security personnel, law enforcement, or another appropriate recipient should be warned. The provider should also consider whether the warning can be made without disclosing diagnosis, treatment history, clinical impressions, or other confidential treatment information beyond what is necessary to address the risk.

Example 4: A School or Community Program Receives Mental Health Information

A community program or school-related service provider receives information suggesting a credible threat toward another participant. Staff may feel pressure to circulate emails, reports, or intake documents internally. Before doing so, the organization should consider whether the information is protected by Wisconsin mental health confidentiality rules and whether a narrower warning or safety communication would accomplish the protective purpose.

Example 5: A County Department Develops a Threat Response Policy

A county department wants a policy for staff who receive threats during crisis services, adult protective services work, jail diversion programs, or other behavioral health settings. A strong policy should explain when supervisors and legal counsel should be contacted, how warnings should be documented, who may receive the warning, and why treatment records should not be shared unless disclosure is clearly authorized.

In each example, the key point is the same: the Wisconsin duty to warn may require protective action, but Wisconsin mental health confidentiality rules still require careful control over what information is disclosed, to whom, and in what form.

Best Practices for Wisconsin Duty to Warn and Mental Health Confidentiality Issues

Organizations that handle mental health information should have clear procedures for responding to threats. Those procedures should recognize both the Wisconsin duty to warn and the Wisconsin mental health confidentiality obligations imposed by Wis. Stat. § 51.30.

Practical steps may include:

• Determine whether the threat is credible, specific, and directed toward an identifiable person or group.
• Identify who actually needs to receive the warning in order to reduce the risk.
• Limit the content of the warning to the information necessary to permit protective action.
• Avoid sending treatment records, emergency detention statements, or clinical documents unless a statutory exception or informed written consent clearly authorizes disclosure.
• Document the basis for the warning, the information disclosed, the recipient, and the reason the disclosure was limited to that scope.
• Consult legal counsel before disclosing records or documents, particularly when multiple agencies are involved.

Bottom Line on Wisconsin Duty to Warn and Wisconsin Mental Health Confidentiality

The Wisconsin duty to warn is about preventing foreseeable harm. Wisconsin mental health confidentiality law, including Wis. Stat. § 51.30, is about protecting sensitive treatment records. When a credible threat arises, both obligations may be in play. The safest approach is usually to provide a narrowly tailored warning while avoiding disclosure of protected records unless the law clearly permits it.

For mental health providers, county departments, law enforcement agencies, and counsel advising public entities, the key is preparation. Written policies, staff training, and prompt legal review can help ensure that safety concerns are addressed without unnecessarily exposing confidential treatment records.

Frequently Asked Questions About Wisconsin Duty to Warn and Mental Health Confidentiality

Does the Wisconsin duty to warn override mental health confidentiality?

Not automatically. Wisconsin courts have recognized a duty to warn in certain circumstances, but they have not treated that duty as a blanket exception to Wis. Stat. § 51.30. A limited warning may be appropriate, but disclosure of treatment records usually requires a statutory basis or informed written consent.

Can emergency detention records be disclosed in Wisconsin?

Emergency detention records can qualify as treatment records under Wisconsin mental health confidentiality law. As a result, they should not be disclosed casually or broadly. Before releasing emergency detention paperwork, agencies should confirm that a statute, court order, or valid consent authorizes the disclosure.

What information can be shared when there is a credible threat?

The safer practice is to share only what is necessary to communicate the risk and allow protective action. For example, a limited warning may be different from sending clinical notes, treatment records, police reports containing protected information, or emergency detention documents.

Who should receive a Wisconsin duty to warn communication?

The warning should generally go to the threatened person or to an appropriate recipient who can help protect that person. The correct recipient depends on the facts, the nature of the threat, and the role of the provider or agency involved.

Why should agencies have a written Wisconsin mental health confidentiality policy?

A written policy helps staff respond quickly and consistently when threats arise. It can also reduce the risk of over-disclosure by making clear who should be consulted, what may be disclosed, how warnings should be documented, and when legal review is needed.

Need guidance on Wisconsin duty to warn, Wisconsin mental health confidentiality, emergency detention records, or Chapter 51 disclosure issues? An attorney familiar with Wisconsin mental health confidentiality requirements can help evaluate the risks, identify permissible disclosures, and develop policies that protect both public safety and patient privacy.

Legal Disclaimer

This article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Because Wisconsin duty to warn and Wisconsin mental health confidentiality issues are fact-specific, providers, agencies, and public entities should consult qualified legal counsel about specific situations.

The Wisconsin Department of Health Services (DHS) is committed to keeping families informed during the COVID-19 pandemic. DHS has published a second Birth to 3 Program Family Communication, P-02654, which contains important information about COVID-19 for children and families who access early intervention services through the Birth to 3 Program.

County programs are asked to share this publication with families.

HIPAA Privacy:

Privacy Rule (HHS) –
HIPAA Privacy Rule & Public Health (CDC) –

HITECH Privacy regulation –

Breach Notification for Unsecured Protected Health Information – Interim Final Rule (August 24, 2009) –

HITECH Act Enforcement Interim Final Rule (October 29, 2009) –

Individuals’ Right under HIPAA to Access their Health Information (February 25, 2016) –

Updated Joint Guidance on Application of HIPAA and FERPA to Student Health Records (December 2019 Update) –

Other Privacy Guidance Documents –

Privacy and Security Standards –
Security Rule –

HIPAA Administrative Simplification Statute & Rules –

NIST Security Resource –

HHS Office of Civil Rights Security Rule –

HHS Office of Civil Rights Security Guidance Documents and Other Important Links –

State Confidentiality Law Links:

Wisconsin Stat. § 51.30 – State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act –

Wisconsin Stat. § 146.816 – Uses and Disclosures of Protected Health Information –

Wisconsin Admin. Code ch. DHS 92 – Confidentiality of treatment records –

Wisconsin Admin. Code ch. DHS 94 – Patients Rights & Resolutions of Grievances –

Medicaid

Wisconsin Stat. § 49.475 – Information about Medicaid Assistance beneficiaries –
Wisconsin Admin. Code ch. DHS 108 – General Medicaid Administration –
Provider

Wisconsin Stat. § 146.81-84 – Miscellaneous Health Provisions (health care records) –
Wisconsin Stat. § 146.816 – Uses and Disclosures of Protected Health Information –
Wisconsin Stat. § 252.15 – Communicable Diseases – Restrictions on Use of HIV Tests –

Long-Term Care (Family Care)

Wisconsin Stat. ch. 46 – Long-term Care (Confidentiality – Exchange of Information) –

Wisconsin Admin. Code ch. DHS 10 – Confidentiality and Exchange of Information (Family Care)
§ DHS 10.23(7) ADRCs
§ DHS 10.45(5)

CMOS
Other

HIPAA COW (HIPAA Collaborative of Wisconsin) –
Wisconsin Office of Privacy Protection –
FTC Privacy Initiatives –

Tony Evers, Governor of Wisconsin, and Wisconsin Department of Health Services Secretary-designee Andrea Palm have issued another emergency order, Emergency Order #35 (Order #35), directed at suspending certain administrative rules in an attempt to remove unnecessary impediments to the fight against the virus.

A major focus of Order #35 is assuring that Medicaid members retain their coverage eligibility during the COVID-19 pandemic. This provision was required under the Families First Coronavirus Response Act as a condition of eligibility to receive federal funding. Order #35 contains provisions expanding the availability of telehealth in the mental health and substance abuse areas. The order also suspends the requirement that certain mental health and substance abuse services be provided only in a face-to-face setting. This is just one of the many ways in which telehealth received a “shot in the arm” from the pandemic.

A few additional areas touched in Order #35 include:

Temporarily permitting nurses to bill Medicaid for overtime.
Suspension of certain prior authorization requirements, number of refill limitations, and prescription duration limitations.

Waiver of the requirement for parents to make certain payments for the “Birth to 3” program which provides early intervention services for children with developmental delays and disabilities.

Permits supervision of occupational therapists by electronic means in situations where close supervision is required.

Removes the requirement for health departments to conduct a community health assessment resulting in a community health improvement plan at least every five years. The “five-year” requirement is removed but the general obligation remains.

Revises DHS 34.02 (8) relating to emergency mental health services. Reference is directed toward prioritization of services in cases where the need for services outweighs resources.

Extends the time from three months to six months for newly hired mental health training staff who have less than six months experience to complete their 40 hours of documented orientation training.

Makes it easier for volunteers to meet their 40 hour training requirement. Instead of requiring all 40 hours of training be completed before commencing direct client work, trainees must now complete eight hours before starting. Ten additional hours must be completed by the end of the first and second months of volunteer work. The 40 hours of training must be completed within three months of starting volunteer work.

Deleted the minimum staffing requirements for outpatient mental health clinics under Wis. Admin. Code DHS 35. The general requirement the clinic have “a sufficient number of qualified staff members available to provide outpatient mental health services to consumers admitted to care” remains. The two specific options for meeting the minimum staffing responsibility have been removed. Previously, clinics could meet their staffing requirement by meeting any of the three specific staffing scenarios included in the regulation.

This is unlikely to be the last set of waivers issued. Providers who feel they might be restricted by state or federal regulatory requirements during the pandemic should communicate with the regulatory bodies. Federal and state regulators have been sensitive to the needs of providers that are necessary to enable them to address the unprecedented needs created by the COVID-19 virus.

I’ve recapped the highlights, the full Order #35 can be found here.

You can download a PDF file of “Real Voices. Real Stories” at the following link: Real Voices PDF Download

Some of the stories in the “Real Voices” section include coverage of a Joint Commission Life Safety Coach Surveyor  and an emergency department nurse at one of the largest hospitals in Chicago, among others.

The Joint Commission website includes a variety of other resources.   The Joint Commission does not have the largest list of resources.  Instead, the Joint Commission’s goal is to attempt to cut through the deluge of information on the COVID-19 virus and provide “only the information that best meets the needs of health care workers and leaders.”

Wisconsin Prohibited Maneuvers and Techniques in Community Based Programs

The Wisconsin Department of Health Services (DHS) as released a memo that specifies maneuvers or techniques that may not be used at any time in community based programs and facilities. DHS deems the prohibited maneuvers or techniques to “present an inherently high risk of serious injury and even death.”  Providers are directed by DHS to immediately discontinue the use of any of the listed maneuvers.  Prohibited maneuvers, techniques, and procedures that may not be used under any circumstances include:

• Any maneuver or technique that does not give adequate attention and care to protection
  of the head.
• Any maneuver or technique that places pressure or weight on the chest, lungs, sternum,
  diaphragm, back, or abdomen.
• Any maneuver or technique that places pressure, weight, or leverage on the neck or throat, on any artery, or on the back of the head or neck, or that otherwise obstructs or restricts the circulation of blood or obstructs an airway, such as straddling or sitting on the torso, or any type of choke hold.
• Any maneuver or technique that involves pushing into a person’s mouth, nose, or eyes.
• Any maneuver or technique that utilizes pain to obtain compliance or control, including punching, hitting, hyperextension of joints, or extended use of pressure points.
• Any maneuver or technique that forcibly takes a person from a standing position to the floor or ground. This includes taking a person from a standing position to a horizontal (prone or supine) position or to a seated position on the floor.
• Any maneuver or technique that creates a motion causing forcible impact on the person’s head or body, or forcibly pushes an individual against a hard surface.
• The use of seclusion where the door to the room would remain locked without someone having to remain present to apply some type of constant pressure or control to the locking mechanism.

DHS explains in the memo that the ultimate goal is to replace such interventions with trauma-informed systems and settings, positive behavior supports, and non-coercive intervention strategies. DHS promotes recovery and healing that is consumer-driven, person-centered, trauma-informed, and recovery-based.

In addition to describing measures that are completely prohibited, DHS states that restrictive measures that are not prohibited may only be used in emergency situations in which there is an imminent risk of serious harm to self or others, or as part of an approved plan. Situations in which the person’s behavior was foreseeable based on his or her
history are not considered an emergency.   Even restrictive measures that are not directly prohibited must be avoided whenever possible and may only be used after all other feasible alternatives, including de-escalation techniques, have been exhausted. When necessary, restrictive measures may only be used with the minimum amount of force needed, and for the shortest duration possible, to restore safety.

Facilities should review their policies and practices to assure compliance with the guidelines set forth in the memo. Additional staff training should be conducted to assure compliance with these standards.   Additionally, providers should become familiar with the changing standards of care and best practices focused on building skills and techniques to de-escalate and redirect behaviors that present safety concerns, and work earnestly to promote a trauma-informed culture of care.