In Volk v. De Meerleer, the Washington state Supreme Court expanded the so-called Tarasoff standard regarding a mental health professional’s duty to protect and warn a third party of possible violence, asserting that the duty extends to any possible victim—even one that has not been specifically identified by the patient.
The ruling applies only to clinicians in Washington state. Although other states could conceivably adopt a similar standard, the ruling does not establish a legal precedent outside of Washington. (It was a 1976 case, Tarasoff v. Regents of the University of California, that established the principle that a mental health professional has the duty to protect a third party, specifically identified by a patient, that he or she may be potential victim of violence.)
Tarasoff has typically been interpreted to mean that the mental health provider owes a duty to the intended victim if the victim is identified or reasonably identifiable. But the new decision by the Washington state Supreme Court suggests that the duty is more expansive and that the provider may have an obligation to probe statements about violence to determine whether there is an intended victim and/or to infer intended victims from past sessions.
The decision creates a new category of “medical negligence,” rendering clinicians in Washington state potentially legally liable if it is determined that they should have known someone would be a victim of violence. APA signed on to an amicus brief with the Washington State Medical Society and six other groups saying that a lower court’s finding that mental health professionals owe a duty of care to the general public, not just to reasonably identifiable third parties, places an unfair burden on clinicians.
APA CEO and Medical Director Saul Levin, M.D., M.P.A., said the ruling is a troubling one. “The court’s ruling in Volk v. De Meerleer places clinicians in Washington state in a difficult position and could have detrimental effects on the patient-psychiatrist relationship,” he said. “To the extent that a similar standard of liability could be adopted in other states, it should be of concern to psychiatrists and mental health professionals everywhere. APA will continue to follow developments in Washington state and continue to advocate for a fair and rational approach to Tarasoff duties.”
APA President Maria A. Oquendo, M.D., Ph.D., echoed those remarks. “Holding mental health professionals liable to third-party victims who were not identifiable as targets of actual threats places an unreasonable burden on mental health professionals,” she said. “This decision marks a significant departure from previous case law concerning Tarasoff duties. Leaving it to a jury to determine whether a mental health provider ‘should have known’ that a patient would be dangerous has a real potential to interfere with treatment of mental health patients.”
Marvin Swartz, M.D., chair of the APA Committee on Judicial Action, told Psychiatric News that the decision potentially undermines the traditional understanding of physician liability. “Expanding physician liability to a new doctrine of ‘medical negligence’ suggests that courts and juries might begin to adopt a liability standard akin to strict product liability rather than the established standards of medical malpractice,” he said. “The likely result would be a serious undermining of the physician/patient relationship.”
Look for further coverage of the court’s decision in a future issue of Psychiatric News.
For more information on the Tarasoff decision, see the Psychiatric News article “What Is My Duty to Warn?”