1. Duty to Warn/Right to Protect Legal Infrastructure for Mental Health Professionals Faced with Threats to Third Parties Maria-Vittoria “Giugi” Carminati, JD, LLM

2. General Overview of Duty to Rescue  Generally, 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."

3. Tarasoff – A Primer  The 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.

4. California Law Post Tarasoff Psychotherapists; duty to warn of threatened violent behavior of patient; immunity from monetary liability a)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. b)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) Psychotherapists; duty to warn of threatened violent behavior of patient; immunity from monetary liability a)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. b)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)

5. Tarasoff – A Duty v. A Right  Tarasoff = A Duty to Report  California Statute = A Right to Report  Tarasoff = A Duty to Report  California Statute = A Right to Report

6. State by State Duty to Warn and/or Protect

7. Tarasoff Turned into 51 Jurisdiction- Specific Duties  As 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.  As 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.

8.  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.  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.

9. Factors Considered by Courts & Legislatures  Foreseeability 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.  Foreseeability 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.

10. Level of Threat Triggering “Warning” Requirement  Serious – California and Colorado  Actual – Kentucky, Montana, and Washington  Immediate – Louisiana  Specific and Serious – Minnesota  “Physical violence against a clearly identified or reasonably identifiable victim.” - Kentucky  Serious – California and Colorado  Actual – Kentucky, Montana, and Washington  Immediate – Louisiana  Specific and Serious – Minnesota  “Physical violence against a clearly identified or reasonably identifiable victim.” - Kentucky

11. 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.  “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.

12. New Jersey – McIntosh v. Milano  Superior 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.  Superior 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.

13. 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.  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.

14. California – Jablonski v. United States  Psychiatrist 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.”  Psychiatrist 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.”

15. Vermont – Peck v. Counseling Service of Addison County  A 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.  A 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.

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

17. 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.

18. Maryland – Hosenei v. United States  A Maryland federal court limited the duty to protect third parties only when the therapist had the right to commit the patient to the hospital.

19. State by State Statutory Provisions  Duty or right to disclose?  Likelihood of harm?  Identified victim?  To who can disclosure be made/has to be made?  Duty or right to disclose?  Likelihood of harm?  Identified victim?  To who can disclosure be made/has to be made?

20. HIPAA  Section 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.  Section 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.

21. Britain  A 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.  A 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.

22. Osman  Mrs 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.  Mrs 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.

23. Osman  Mrs 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”  Mrs 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”

24. Austria  Absolute ban on disclosure.