Duty to Warn/Right to Protect - PowerPoint Presentation

Slide1

Duty to Warn/Right to ProtectLegal Infrastructure for Mental Health Professionals Faced with Threats to Third Parties

Maria-Vittoria “Giugi” Carminati, JD, LLMSlide2

General Overview of Duty to RescueGenerally, American tort law does not impose liability on parties for failing to aid or rescue other parties. The Restatement (Second) of Torts § 314 (1965) states: "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." However, the law provides narrow exceptions in some instances when parties owe a specific duty to one another, such as when parties have a "special relationship."Slide3

Tarasoff – A PrimerThe public policy favoring protection of the confidential character of patient–psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.Slide4

California Law Post TarasoffPsychotherapists

; duty to warn of threatened violent behavior of patient; immunity from monetary liability

There

shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to protect from a patient's threatened violent behavior or failing to predict and protect from a patient's violent behavior except if the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or

victims.

There

shall be no monetary liability on the part of, and no cause of action shall arise against, a psychotherapist who, under the limited circumstances specified in subdivision (a), discharges 

his or her duty to protect

 by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency

.

California Code § 43.92 (as Amended in 2012)Slide5

Tarasoff – A Duty v. A RightTarasoff = A Duty to Report

California Statute = A Right to ReportSlide6

State by State Duty to Warn and/or ProtectSlide7

Tarasoff Turned into 51 Jurisdiction-Specific DutiesAs of 2013

29

states have laws mandating the reporting of serious

threats,

16

states and the District of Columbia have permissive reporting

laws,

4

states have no duty to

report,

and

1state

(Georgia) has its own unique

law.Slide8

The 29 states with mandatory reporting laws: Alabama, Arizona (duties vary for different professions), California, Colorado, Delaware (duties vary for different professions), Idaho, Illinois (duties vary for different professions), Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Tennessee, Utah, Vermont, Virginia, Washington, and

Wisconsin

The 16 states and the District of Columbia with permissive reporting laws: Alaska, Arkansas, Connecticut, District of Columbia, Florida, Hawaii, Kansas, Mississippi, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Texas, West Virginia, and Wyoming

.

The

4 states

with no duty to report: Maine, Nevada, North Carolina, and North

Dakota

The states granting immunity if the mental health professional complies with certain statutory requirements

are:

Alabama, Arizona, California, Colorado, Delaware, Louisiana, Maryland, Michigan, Minnesota, Nebraska, New Hampshire, Tennessee, Virginia, and Washington.Slide9

Factors Considered by Courts & LegislaturesForeseeability of harm to Plaintiff;The degree of certainty that Plaintiff suffered injury;

The

closeness of the connection between

Defendant's

conduct and the injury suffered by Plaintiff;

The

moral blame attached to

Defendant's

conduct;

The

policy of preventing future harm;

The

extent of the burden to

Defendant

and consequences to the community of imposing a duty to exercise care with resulting liability for breach

; and

The

availability, cost and prevalence of insurance for the risk involved

.Slide10

Level of Threat Triggering “Warning” RequirementSerious – California and ColoradoActual – Kentucky, Montana, and Washington

Immediate – Louisiana

Specific and Serious – Minnesota

“Physical

violence against a clearly identified or reasonably identifiable victim

.” - KentuckySlide11

Florida – Boynton v. Burglass“Although other jurisdictions have followed the lead of the California Supreme Court in the landmark decision of

Tarasoff

v Regents of Univ. of California, we reject that “enlightened” approach. Florida courts have long been loathe [sic] to impose liability based on a defendant’s failure to control the conduct of a third party

.”

Florida Court of Appeals concluded that given

a psychiatrists

lack of control over the patient, it is untenable to create a duty.Slide12

New Jersey – McIntosh v. MilanoSuperior Court of New Jersey held that a psychiatrist had a duty to warn, even though his patient had not expressed a threat to harm the patient's homicide victim.

The

question for the jury was whether the psychiatrist “knew or should have known” that his patient “presented a clear danger or threat” to the

victim.

The Court held that the

jury

could look

for “retaliation fantasies,”

implying that the

psychiatrist should have considered this in assessing whether a clear danger existed

.Slide13

Nebraska – Lipari v. Sears Roebuck & Co.The Federal District Court

recognized

a duty on therapists that extends to protecting strangers. In that case, a patient was receiving psychiatric care from a Veterans Administration. The patient purchased a shotgun and used it in a random attack at a crowded nightclub, killing one

person.

The

Court held that a duty to protect would arise, even though no specific threats were made by the patient against any specific person. Thus, the Court dispensed with the need for an identifiable victim and required “only that the doctor reasonably foresee that the risk engendered by his patient’s

condition would endanger other persons.

Nebraskan therapists have a duty to protect anyone foreseeably endangered by a

patient.Slide14

California – Jablonski v. United StatesPsychiatrist had a duty

to warn the future homicide victim, Ms. Kimball. Although the patient, Mr. Jablonski, had not

expressedly

threatened to kill Kimball, further assessment should have established the danger he posed to her.

The

hospital should have “secure[d] Jablonski's prior

records.”Slide15

Vermont – Peck v. Counseling Service of Addison CountyA master's level counselor was told by his patient that he intended to burn down another person's barn.

The

court's opinion suggested that all mental health professionals had a duty to protect not only threatened victims, but their property as well.Slide16

Colorado – Brady v. HopperThe federal court wrote that an overt threat of violence toward a specifically identifiable victim was required before a therapist could be found liable. Slide17

Iowa – Votteler v. Heltsley

The court found

no duty on the part of the therapist when the threatened victim already had reason to know of the potential danger. Slide18

Maryland – Hosenei v. United StatesA Maryland federal court limited the duty to protect third parties only when the therapist had the right to commit the patient to the hospital.Slide19

State by State Statutory ProvisionsDuty or right to disclose?Likelihood of harm?Identified victim?

To who

can disclosure be made/has to be made?Slide20

HIPAASection 164.512(j) of HIPAA expressly permits a health care provider to disclose patient information, including information from mental health records, if the provider in good faith

believes the disclosure is

necessary

to prevent or lessen

a serious and imminent

threat to

the health or safety

of

a

person or the public

. 

It

also enables a health care provider to make a disclosure to law enforcement officials, family members of the patient, or others who may reasonably be able to prevent or lessen the threat. 

Disclosure has to be in compliance with ethical and State laws.Slide21

BritainA psychiatrist can be permitted to depart from his/her duty of confidentiality, in order to issue a warning where a patient is deemed to present a real and serious threat to other parties. 

BUT

European Court of Human Rights

Osman

Decision may change this.

In Osman, the European Court of Human Rights’ (ECtHR) used Article 2 to introduce a positive obligation to protect third parties into United Kingdom law.Slide22

OsmanMrs Osman sued local police for failing to protect her now deceased husband. Mr

Osman was shot dead by a teacher, Paget-Lewis, who had formed an obsessive attachment with their son.

Mrs

Osman argued that the police had failed to act on warning signs that Paget-Lewis represented a serious threat to her

family.

The

evidence indicated that Paget-Lewis was jealous of her son’s relationship with another student at school. Paget-Lewis had allegedly

vandalized

the

Osmans

’ property, wrote slanderous graffiti on school premises and stole a shotgun that was used in the shooting of

Mr

Osman.

The

English Court of Appeal dismissed the claim on a public policy ground – that the police could not be negligent for failures relating to the investigation of

crime.Slide23

OsmanMrs Osman then petitioned the ECtHR for a remedy. On the facts, the Court dismissed the claim under Article 2 because the criminal conduct of Paget-Lewis was not reasonably foreseeable by the

police.

HOWEVER

:

The

Court stated that Article 2 could give rise to “a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another

individual”Slide24

AustriaAbsolute ban on disclosure.