Minnesota Court Decision Excludes Some From Duty to Warn Protection

By John Thomas, Associate Editor
July 30, 2015



justice-e1374189974611A narrow and literal interpretation of state law governing duty to warn by the Minnesota Court of Appeals removes the protection from liability in releasing confidential patient information by mental health workers not licensed by the state.

The ruling, according to the president of the Minnesota Psychological Association (MPA), puts pre-doctoral, post docs, interns, unlicensed providers and supervisors at risk.

In an alert, Scott Palmer, Ph.D., wrote that the ruling “is problematic in a number of ways and confuses the idea that the duties and immunity flow from the supervisor-supervisee relationship. In a sense, this court decision puts unlicensed mental health providers, including pre-doctoral interns, post-doc fellows and supervisees, in a position of having to adhere to standards intended for psychologists yet takes away their legal protection and immunity after having done so in good faith under the Minnesota duty to warn laws and APA’s ethical standards.”

The case involved an anger management client, Jerry Expose, who allegedly told a mental health clinic intern working on getting credentials to become licensed that he would harm a case worker he thought was keeping him from seeing his children. After the intern, Nina Mattson, checked with her supervisor about how to deal with the threat, she informed the St. Paul police.

Expose was charged with making terroristic threats and was convicted and sentenced to prison. Part of the prosecution’s case involved Mattson testifying about what Expose allegedly told her during their therapy session.

After he was convicted, Expose filed suit against Mattson and the clinic that employed her, charging that reading her notes in court violated his right of privacy.

The court held that since the law specifically states that the duty to warn protection under Minnesota law includes licensed psychologists only, there are no exceptions for those, like Mattson, who was working her required year as a mental health intern prior to seeking licensure. The court ruled that a lower court judge erred in overruling Expose’s objection to having his mental health counseling records made public during the trial.

The Minnesota law governing who is covered by the duty to warn was changed by the state legislature in 1996 when it revised the law by changing the word “practitioners” to “licensees.”

Palmer said the Minnesota Board of Psychology and the MPA are following the case to determine how to restore the immunity once enjoyed by all mental health professionals, licensed or not.

“If the case is not appealed to the Minnesota Supreme Court, an option is to work with the board to introduce legislation that will amend the statute. For now, psychologists who are impacted by this Court of Appeals decision may want to consider legal counsel,” Palmer wrote in his alert.

According to the National Conference of State Legislatures, several other states, including Alabama, Alaska, Arizona, Arkansas, Louisiana, Massachusetts and New Hampshire, specify that their duty to warn laws are applicable only to licensed therapists, but that the protection extends to those who have no license but are under the direction of a licensed supervisor.

The organization said 29 states require some or all mental health professionals to warn or protect potential victims about credible threats from patients. Many of those states offer immunity under the duty to warn or protect to non-therapists, including clerks and administrative assistants with no counseling responsibilities.

It appears that the Minnesota court case is the first one that held supervisees do not enjoy the same protection that their supervisors have under state duty to warn laws. An exhaustive search of the Internet revealed that many therapists have been found liable for not following state law on duty to warn, but no cases could be found in which a therapist was sanctioned for following state law.

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