The Duty to Warn and the Liability of Mental Health Care Providers
| Publication year | 1987 |
| Pages | 70 |
1987, January, Pg. 70. The Duty to Warn and the Liability of Mental Health Care Providers
The landmark case of Tarasoff v. Regents of University of California(fn1) first established that mental health professionals have a duty to warn or take other action to protect potential victims of a patient's violent intentions. Ever since, psychotherapists have grown increasingly concerned that the so-called "duty to warn" has become an ill-defined "duty to protect" in which they are held responsible for their patient's conduct without being given sufficient guidance on when the duty exists or how it is to be discharged.
In Colorado, the doctrine was first recognized by the U.S. District Court for the District of Colorado in Brady v. Hopper(fn2), the liability case arising from John Hinckley's attempted assassination of President Reagan in 1981. However, in the absence of specific threats against an identifiable victim or victims, the court held that a psychotherapist has no legal duty to warn or protect third persons. Most recently, the doctrine has been recognized by the Colorado Court of Appeals in Perreira v. State of Colorado.(fn3) In Perreira, the court held that a psychotherapist has no legal duty to third persons unless the patient made specific threats against specific individuals.
This article discusses mental health professionals' "duty to warn" or "duty to protect" and recent legislation passed in Colorado.
The widespread acceptance by the courts of the duty to warn or protect has been a source of growing concern to the mental health profession. Their criticism has ranged from denying that dangerous-ness can be accurately predicted to criticizing the courts for imposing liability when "bad results" have occurred. Moreover, the mental health profession has criticized the courts for failing to provide adequate guidelines for the discharge of their duty in actual clinical practice.
Clinicians also have charged that the courts are insensitive to issues of confidentiality and trust in the therapist/patient relationship and the difficulties they face in trying to provide mental health care when public sector resources, including hospital beds, are inadequate. Other concerns that mental health professionals have voiced are the duty's effect on the manner in which therapy is conducted, the fear that those persons most in need of treatment might be deterred from seeking therapy and that such cases might deter clinicians from treating potentially violent patients. Therapists have also argued that such a duty could lead the patient to conceal information concerning aggressive impulses, feelings or fantasies.(fn4)
In Tarasoff, the California Supreme Court stated that
Even more alarming to therapists were decisions by courts in other states that seemed to extend the psychotherapist's duty to require reasonable precautions to protect anyone who might foreseeably be endangered by an ex-mental patient's behavioronce a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.(fn5)
In a call for legislative action published in November 1985, the American Psychological Association cited the example of a Washington public hospital that was held liable when...
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