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Mental Health Professionals May Soon Be Liable For Failure To Report Patient’s Intent To Harm Others

by Ronald W. Chapman, Sr., M.P.A., LL.M.

Under common law and most state statutes a mental health professional is only liable for the injury caused by a patient to a third party if: 1) the patient expressed a desire to commit the act, 2) the mental health professional had the reasonable belief the patient would carry out the act. In such circumstances the mental professional’s duty is to warn the possible indented victim, hospitalize the patient, or report the event to law enforcement.

On December 22, 2016, the Washington Supreme Court issued a decision in Volk v DeMeerleer that dramatically changed the landscape and potentially places mental health professionals in the hot seat. A patient who received outpatient treatment on a regular basis from the psychiatrist killed his girlfriend and her child. The estate sued the psychiatrist alleging that it was foreseeable that the patient would act out in a violent way and the psychiatrist had a duty to warn the potential victim. The patient last saw the psychiatrist three (3) months prior to the killing.

The lower court dismissed the case and the higher court reinstated arguing whether or not the alleged harm was foreseeable is a jury question. This is a dramatic departure from the most states, but may be in-line with the Restatement of Torts. The Restatement (second) of Torts § 315 states, a person “has the duty” to “control the conduct” of a third party if “a special relationship exists.”

It’s unclear whether this dramatic departure is going to take hold or if it remains only the law of Washington State. If the law changes the mental professional will be placed in a difficult position. The confidences of a patient must be protected; however, if the standard is one of reasonableness the mental health professional will be forced to error on the side of taking action. This could jeopardize treatment, unnecessarily complicate a patient’s life, and probably have little effect on preventing harm.