States’ Laws Determine Liability in Duty to Warn

By Stephen E. Berger, Ph.D., ABPP and Michael A. Berger, J.D., M.Ed.
October 13, 2015

running-the-gauntlet-300x199-300x199In the July/August issue, The National Psychologist reported on the case of State of Minnesota v. Expose regarding a psychotherapist’s duty to report dangerous patients and the doctor’s immunity from liability for breach of confidentiality thereof. The patient, who threatened to harm another person, was being treated by a student. Subsequently, the patient was charged with a crime, resulting in the student reading the therapy notes in court.

In Expose, the patient sued for breach of confidentiality. Ultimately, the Minnesota Court of Appeals ruled that the immunity provision of the Minnesota law only specified licensed professionals, and thus the student and the clinic where treatment took place could be liable for breach of confidentiality. The Minnesota case is still active, so our comments only address the basic issues that have implications for psychologists in every state. Since we are most familiar with California law, we will use California laws and court decisions to elucidate our points.

The California Evidence Code Section 1012 defines confidential communications, and germane to this analysis, Section 1024 specifies that there is no privilege (confidentiality) when patients are dangerous to others (or to themselves/suicidal). For patients to claim breach of confidentiality, they would first have to assert that a right to confidentiality exists.

It seems to us that in California (and probably many states), there is no confidentiality when patients credibly threaten to seriously hurt other people. Therefore, there is no breach (break) of confidentiality in those situations. In other words: you can’t break something that doesn’t exist. Clearly, psychotherapists should not promise patients things (confidentiality) that they cannot legally deliver.

To fully appreciate the multiple issues involved, a bit of history should be helpful. In 1974, the California Supreme Court ruled that therapists had a duty to warn a potential victim of a patient’s threatened harm. Mental health professionals petitioned the court to reconsider its decision, arguing that mental health professionals have no ability to predict when a patient will act violently. In 1976, the court responded by holding that instead of a duty to warn, psychotherapists have a duty to protect potential victims by attempting some reasonable affirmative action that had to be determined in each case.

Following those cases, and in an effort to clarify the muddle, the California legislature enacted Civil Code Section 43.92 specifying that if the psychotherapist does notify the police and makes a reasonable effort to notify the potential victim, there is no liability for the psychotherapist. Furthermore, section 1010 of the California Evidence Code’s definition of a psychotherapist includes licensed psychologists, students in a formal practicum and students in an internship. However, be aware that on Jan. 1, 2016 California law changes and licensed psychotherapists will be required to notify “local” law enforcement about dangerous patients.

In Expose, it was held that in Minnesota immunity for fulfilling the state’s duty to warn requirement only pertains to licensed professionals and not students acting under direct supervision of the psychotherapist. Yet, students don’t work independently – legally, students are the agents of the professional and are thrust in the “shoes” of the licensed practitioner.

The critical lesson to glean is that you need to know and understand the law in your state – which means you may have to be clairvoyant and have a good idea of how a court will interpret the law (see our earlier article in The National Psychologist on the California legal case: Ewing v. Goldstein).

Our view of California law is that because students are defined as psychotherapists under the Evidence Code, the protections under the Civil Code should apply to students even when the mandated requirement for licensed therapists changes in January. However, is it worth the risk for you to volunteer as the test case? Therefore, it is probably best if it is the licensed professional who makes the final “diagnosis” that the patient’s words and/or actions constitute a credible threat of imminent danger, and if it reaches the point of courtroom drama – the licensed professional should be the one who gives court testimony.

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Stephen E. Berger, Ph.D., ABPP is a California licensed psychologist. He was one of the individual plaintiffs in CAPP v. Rank, and currently serves on the CAPP Board. He is an associate professor at the American School of Professional Psychology, Southern California teaching forensic psychology as well as ethics and law. He may be reached at Michael A. Berger, J.D., is a California licensed attorney. He has provided legal counsel for the California Association of Psychology Providers (CAPP), the Orange County Psychological Association and the California Licensed Psychologists’ Association and has written and lectured on mental health law. He is also adjunct faculty at Touro University Worldwide teaching Forensic Psychology.

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