Some years ago a psychologist in Wausau, Wisc., found himself worrying about the increasingly angry talk by a client. He was distracted as he tried to remember the “duty to warn” standard, which is a specific case and not a statute in Wisconsin. Suddenly he found himself fighting for his life. He survived the 37 stab wounds from a letter opener. The lesson he wants people to know: Forget about dangers to third parties – you are the person at risk until the client is out of your office.
During the last two years there have been “duty to warn” cases that caused anxiety but, more importantly, were a distraction. Neither case challenged the notion as to what the essential “duty to warn” is – basically if you think your client is about to go out and seriously harm someone you should try to prevent it. Typically a call to law enforcement, or in some circumstances the intended victim, is all you can do to prevent immediate violence.
It is important to recognize that case law continues to evolve and that cases are typically very much tied to the past decisions as well as any statutes in a given venue. Furthermore, unless it is a U.S. Supreme Court decision, there can always be a higher court that overturns a decision.
In a Washington State decision, Peterson v. State (100 Wn.2d 421), the court ruled a psychiatrist could have liability in a case where, absent a specific threat of harm, the psychiatrist should have reasonably known that people were at risk of harm. In this instance there was no connection between the victim and the person who harmed her.
Relying on the Peterson standard, the Court of Appeals, Division Three, in the case of Volk v. DeMeerlear, ruled that a psychiatrist might have had a duty to protect persons who were not the subject of any threat from the patient. In this case, the patient, who had been in treatment for nine years, without warning attacked and murdered two people and injured a third.
There was no evidence that the psychiatrist could have known that those people would become targets. In its 50-page opinion filed Nov. 13, 2014, the court relied on expert testimony by an expert employed by the plaintiffs, James L. Knoll, IV, MD, the editor of Psychiatric Times. He opined that the psychiatrist failed to properly assess the dangerousness and other clinical matters, and that had he done so the degree of risk might have been clear. He also said the intervention by the psychiatrist was not sufficient.
It now goes back to the trial court to see if the jury determines the psychiatrist could have done better.
The issues as to coverage for persons under the supervision of a licensed person became the focus of attention after the findings of the State of Minnesota Court of Appeals in the case of Jerry Expose Jr. vs. Thad Wilderson and Associates, P.A. and Nina Mattson filed May 4, 2015 in Ramsey County District Court (File No. 62-CV-13-5229). The Minnesota Supreme Court agreed with the court of appeals in a decision filed Nov. 30, 2016.
Meanwhile several licensing boards changed their laws to cover trainees. The other findings – that duty to warn does not allow you to discuss the client’s treatment without consent, and that a client handout is not permission to disclose, were no surprise.
In short, despite all of the anxiety created by these two cases, they were really tempests in a teapot. Secondly, a well-constructed statute in the area of duty to warn is always a good idea. Case law is not a good way to go.
Gary R. Schoener is a clinical psychologist who is director of the Institute for Consultation and Training of the Walk-In Counseling Center in Minneapolis (www.walkin.org). He is internationally known as an expert on ethics and boundaries and maintains a private practice in forensic psychology. His email is: firstname.lastname@example.org