… In a previous issue of the Avoiding Liability Bulletin, under the heading of Dangerous Patients and the “Tarasoff Duty” (April 2005, Volume 2), I described a problem in California and asked about the law in your state regarding the duty, if any, on the part of a therapist or counselor to protect a third party from the threatened physical violence of the patient. The law varies in fine nuance from state to state, not only with respect to the issue of the specific duty and how it may be discharged, but with respect to the issue of when the duty is “triggered.”

For example, one trigger (consistent with the famed California Supreme Court’s 1976 decision in Tarasoff v. Regents University of California) is when the therapist determines that the patient presents a serious danger (e.g., imminent) of physical violence to a readily identifiable other. Another type of trigger is when the patient communicates to the therapist an explicit threat to kill or inflict serious bodily injury against a reasonably identified victim.

As you might discern, the differences between these two approaches to the “trigger” of the duty are significant. In the first example, the therapist’s determination may apparently be made not only as the result of a threat made by the patient, but by a variety of factors, such as communications and information received from others, a review of prior treatment records, the patient’s nonverbal communications, and the patient’s communications (verbal and non-verbal) that do not amount to “an explicit threat.”

In the second example, the duty is arguably triggered only if there is an explicit threat communicated by the patient to the therapist. Thus, in some cases a therapist might determine that the patient is an imminent danger of serious physical violence to a readily identifiable other, but might apparently owe no “duty to warn” or “duty to protect” the victim because there was no communicated and explicit threat. Some state statutes (or case law) combine these kinds of approaches to the “trigger,” while others may contain different and somewhat ambiguous language. One must read the state laws (and case law) very carefully in order to discern the exact parameters for the “trigger” of the duty.

If one doesn’t understand when the duty is triggered, he/she may be breaking confidentiality if certain disclosures are made without the patient’s written authorization. Of course, it is quite possible that the state law will allow or permit disclosures to be made in situations that do not require the therapist or counselor to warn or notify anyone (e.g., situations that do not involve explicit threats of imminent physical violence).

… In the April 2005 (Volume 2) issue of the Avoiding Liability Bulletin I wrote about a huge problem in the state of California with respect to the issue of the dangerous patient and the duty of a therapist. In large measure, the problem has likely been solved because of the passage of legislation that I worked on in conjunction with the sponsor of the bill, the California Association of Marriage and Family Therapists. The legislation affects California psychotherapists only, and its effect is to establish a “safe harbor” for psychotherapists who take certain actions when their patients communicate threats of imminent and serious physical violence against readily identifiable others.

Prior to passage of this bill, some within the California judiciary (and others) interpreted the existing section of law as the creation of a new (post-Tarasoff decision) duty, which if not followed in every case where a patient communicates to his or therapist a serious threat of physical violence against a reasonably identifiable victim, will result in automatic liability for the therapist. More specifically, if the therapist did not make reasonable efforts to communicate the threat to the intended victim and to a law enforcement agency, liability would automatically attach. Thus, therapists who hospitalized a patient – no matter how reasonable the action and no matter what transpires at the hospital and upon discharge – would incur automatic liability if the patient later carried out the threat. This situation has hopefully been rectified (effective January 1, 2007) by the newly passed legislation, which makes clear that the two requirements specified above are for the purpose of gaining immunity from liability.

If a therapist takes other action, like hospitalizing a patient, he or she should not be automatically liable, but rather, should be liable only if it is determined that such action was negligent. Although there would not be immunity, a judge or jury would have to determine if the therapist’s actions were reasonable under the circumstances.

Does your state provide immunity from liability if specific actions are taken? And, if those specific actions are not taken, what is the possible consequence? Check now, before being faced with a dangerous patient situation requiring quick action. Before any action is taken, however, one must know when the duty or the right to warn or break confidentiality is “triggered.” As with other areas of law covered in this Bulletin, state laws vary – so be careful!

In most states, therapists and counselors are permitted (sometimes required) to break confidentiality when the patient is a danger to self as the result of a mental or emotional condition. If the disclosure is required, the practitioner is expected to comply with the law. If the disclosure is permitted, the practitioner must make a very important judgment. In my view, that judgment should favor those disclosures calculated to prevent the threatened or imminent suicide or serious danger to self.

... The topic of dangerous patient bears revisiting from time to time, both because there are new readers and because the topic is often one of the more troubling aspects of practice for mental health practitioners, regardless of the setting in which one works. It is troubling because it may require or permit communications by the therapist or counselor to third parties, whether the police, a threatened victim, a family member, a friend, or another health care provider or health facility. Some of these communications may run counter to the instinct to abide by the duty of confidentiality, to the concept of privileged communications, and to the need for patient privacy. Also, in many cases involving threatened harm by a patient, the therapist-patient relationship may be severely affected, leading to an “unnatural” termination of the professional relationship.

Suppose the following circumstances were to be faced by you - how do you think you would act? Your patient threatens imminent and serious physical violence against her partner during a session. You believe that your patient could carry out the violence in the next few days, and believe that the patient needs intensive evaluation and treatment. Your patient has communicated freely in session and you have had a good relationship with her for the past year. Do you notify law enforcement and break confidentiality – thereby subjecting your patient to the criminal justice system and the disruptive consequences thereof, which could be substantial? Do you attempt to warn the intended victim? Do you do both? What if you thought that hospitalization was most appropriate under the circumstances? Which course of action might (or should) you take?

While many might instinctively say that the latter option seems to be the best option for the patient and seemingly a pretty safe and responsible option for the therapist, it is not always easy for the practitioner to decide upon the best option in any particular case. The answers to the questions posed above depend upon the answers to some other questions that may first need to be asked and answered. Do you desire to act from a clinical perspective and in the best interests of the patient or client by preserving confidentiality as much as possible? Or, do you desire to act in your own best interests first? Are these options mutually exclusive? Is there a law in your state of licensure and practice that provides immunity from liability for taking one or more specified actions? Are you required or permitted by state law to take one or more actions that would result in your breaking of confidentiality in an effort to protect the intended victim?

Suppose the law in your state provides, as does the law in California, that you are entitled to immunity from liability if you make reasonable efforts to communicate the patient’s threat of violence to the intended victim and to a law enforcement agency. I have spoken with many practitioners over many years who have been clear with me that they desire to do what is in their own best interests first – and that if the law provides immunity from liability when one or more specified actions are taken, they are desirous of getting the protection that the law affords in such difficult and volatile situations. In some states, it may be that hospitalization alone or some other action(s) will earn the practitioner immunity from liability. Practitioners should know whether an immunity statute exists in their state, and what action or actions must be taken in order to be entitled to immunity from liability.

Practitioners in California must decide whether they are going to opt for immunity from liability (a comfortable position to be in), or whether they are going to do what they think will be in the patient’s best interests – for example, hospital evaluation and treatment, whether voluntary or involuntary. Practitioners in other states may face similar options (dilemmas), depending upon state law. While there are many practitioners who, when faced with the situation, will opt for immunity from liability, there are others who may decide to forego immunity if the actions required to attain immunity conflict with the best interests of the patient and if there are reasonable alternatives. This is not an easy decision for most practitioners because there is a natural instinct to protect oneself by opting for the “safe harbor” that the law provides.

Interestingly, there may be circumstances where acting within the “safe harbor” (the statute that grants immunity from liability for certain actions) may not be enough to prevent the harm, but it may be enough to attain immunity from liability. For example, if the practitioner in California takes both actions (makes reasonable efforts to warn the victim and notifies law enforcement) after the patient communicates a serious threat, he or she is seemingly immune from liability. Suppose, however, that when the practitioner notifies the police, the police say that they cannot do anything until there is an actual attempt to commit the crime. And, suppose further that the reasonable attempts to notify the victim were unsuccessful. These outcomes are not uncommon. Thus, a practitioner may have done what the law requires for the grant of immunity, although he or she may not have done enough (acted reasonably) under the circumstances!

It is my view that hospitalization, either voluntary or involuntary, is often an appropriate and reasonable action that preserves the patient’s confidentiality and allows for a more intensive evaluation and treatment regimen. In such circumstances, it is important for the practitioner to establish good channels of communication with the facility and its practitioners so that all are kept informed of the patient’s condition, and so that adequate plans can be made for an appropriate discharge from the facility. Depending upon circumstances, the practitioner may, at the time of discharge, have a duty (or a right, depending upon state law) to take other action to protect the intended victim if the danger persists. Of course, the hospital should not (and hopefully would not) discharge people they believe present a danger of imminent physical violence. The hospital should keep the practitioner who initiated the hospitalization informed of the clinical details, especially upon discharge, so that the danger can be properly assessed. Hospitals do not always do this, and practitioners sometimes don’t push hard enough.

It should be understood that merely because the practitioner may not be entitled to immunity from liability granted by applicable state law, it does not necessarily follow that the practitioner will be found to be liable if the lawsuit proceeds to trial. In other words, if the therapist is found to have used reasonable care to attempt to prevent the threatened harm (or complied with the duty, if any, extant in his or her state of practice), the therapist should seemingly have little or no liability, but may have to endure a multi-year process that ends in settlement or trial. It is important to ascertain whether state law allows the practitioner to take such action that he or she deems reasonable under the circumstances, or whether state law mandates certain actions under specified circumstances.

In California, for example, psychotherapists are still governed by what I call the “Tarasoff duty,” which is not a “duty to warn,” as many have mistakenly written or understood, but rather, a duty to use reasonable care to protect the intended victim against the threatened danger. The discharge of this duty will vary with the facts and circumstances presented in each case. In other words, practitioners may take one or more actions intended to protect the victim. The California immunity statute, referred to above, was recently amended to make clear that the two actions required to get immunity from liability (when the patient has communicated to the therapist a serious threat of physical violence) are not necessarily the actions that must be taken in a particular case. In other words, there is no statutorily imposed duty to take a particular action, but immunity from liability can only be achieved by doing what the law granting immunity requires.

Each state treats the dangerous patient differently, and there are many nuances to consider. For example, is the duty of a therapist or counselor the same or different for patients who are dangerous to others and for those who are dangerous to self? In California, for example, the so-called “Tarasoff duty” does not apply in cases involving self-inflicted harm. While there is no “Tarasoff duty” in such cases, the therapist is permitted to make disclosures to others if deemed necessary to protect the patient from suicide or other threatened self harm. Of course, the practitioner is under a duty to provide reasonable and competent care to the patient. What about patients who are a danger to property – how is that handled in your state?