By CCI Team
The phrase “duty to warn” is well known amongst mental health practitioners. In his March 2017 article for his Avoiding Liability Bulletin, Richard Leslie discusses the importance of understanding the Duty to Warn/Duty to Protect within your state of practice. As part of the day to day practice, those in the mental health professionals need to apply clinical judgment in interactions with their clients. This application along with the practical matters of having well-documented treatment records and knowledge of what exactly this “duty” involves is critical in the practitioner’s ability to protect themselves, should the unexpected happen.
What makes matters more complicated is that each state has its own interpretation on the subject of dangerous clients and the related duty to warn/duty to protect in accordance with their own statutes and state law. As a practitioner, it is important to know state confidentiality laws as to understand when the law permits or requires disclosures from you in dangerous client situations. It is also critical to know the following:
What is the duty in your state?
When is this duty triggered?
What actions must be taken in order to be entitled to the immunity available?
The Tarasoff decision has influenced state courts and legislature nationwide; it holds that the therapist is to use reasonable care to protect the intended victim if the client serious danger of violence to the victim (Tarasoff v. Regents of the University of California, 1976). This duty in an application may require the therapist to take any number of actions, depending on the situation, and the duty arises when the practitioner determines, or the standards of their profession determine that the client is in serious danger of violence to another. However, bear in mind that this case while influential is not the determining cause for all States.
Leslie calls to attention the recent decision of Volk v DeMeerler by the Supreme Court of the State of Washington. The Washington court stated that the general public wants to be protected from the mentally ill patients who pose a substantial risk to society and that it relies on mental health professionals to identify and mitigate these risks (Volk v. DeMeerleer, 2016). This is cause for concern for those practicing in the state of Washington, as it essentially holds that the mental health practitioner is liable for the breach of the duty to protect not just of an identified victim, but also any potential foreseeable victim(s). Whether a victim is deemed “foreseeable”, would be determined in review, generally by a jury. Practitioners in Washington will now be exposed to greater liability, as the victims could be any member of the public. While a number of options are available to reasonably warn an identified victim, what are the reasonable options when the client’s victims are not yet apparent to the practitioner?
Liability to victims of a client’s actions doesn’t usually occur unless the practitioner is found to have been negligent and had not exercised steps of reasonable care, which include the identification of and taking steps to mitigate the client’s dangerous actions. Reasonable actions could be a number of practices, including: “notifying law enforcement, arranging for hospitalization of the patient (either voluntary or, if necessary, involuntary), increasing the frequency and intensity of treatment, including referral for a psychiatric evaluation and possible medication, psychological testing, and clinical consultation regarding assessment, diagnosis, or treatment issues” (Leslie, 2017). Unfortunately, this still does not promise that the client will not commit an act of violence. In such cases, it would be up to the governing standards of the practitioner’s profession, i.e. the American Counseling Association, to determine whether the practitioner had acted reasonably.
On the subject of achieving immunity from liability in a dangerous patient situation, Leslie notes that it is important for the practitioner to know whether there is an immunity statute in their respective states and if there is, the specific breadth of the statute and the actions that need to be taken. For example, in California and other states, warning the identified victim, or making a reasonable effort to do so maybe one of several steps required to attain immunity.
Ultimately, this brings to attention the need for practitioners to be aware of the laws of their practicing state, to be diligent in proper assessment, diagnosis, and treatment of the clients and the documentation of the practice. This may, hopefully, serve to better assist the client as well as protect the practitioner.
Leslie, R. (2017, March). Dangerous Patients – Duty to Warn / Duty to Protect.
Tarasoff v. Regents of the University of California, 131 Cal. Rptr. 14 (Cal. 1976).
Volk v. DeMeerleer, 386 P.3d 254, 187 Wash. 2d 241 (2016).