Division III: Duties of Psychiatrists to 3rd Parties Needs Scrutiny by Legislature (ITA Immunity Versus Petersen)
You've all heard of the physician-patient privilege, yes? This also applies to mental health professionals.There’s an exception to that, and mental health professionals sometimes have a duty to others to protect them from the violent behavior of the patient. This case is a doozy, and I will try my best to summarize the massive opinion.
Here, the question is to what extent that duty applies in an outpatient context. In this case the man had sought outpatient treatment for depression and bipolar disorder from a psychiatrist. He then went out and killed his ex-girlfriend, her son, and attempted to kill another son. He then killed himself.
So what was there to trigger any duty on behalf of the psychiatrist to report DeMeerleer? He’d expressed suicidal ideation the couple of times, and he admitted to playing Russian roulette. “He states that earlier this summer he had suicidal ideation and even homicidal ideas, was going to leave the country.” The records also showed some psychotic tendencies. After the initial consultation,DeMerleer continued to make suicidal and homicidal ideations, but Dr. Ashby, the psychiatrist, did not delve into that.
As he was going through a divorce, DeMeerleer admitted to having suicide ideation, but had no intent. After the divorce, he admitted to having some homicidal and suicidal thoughts. “He knows that he would never go there, but just the fact that he was expressing it out loud to other people is an embarrassment for him."
The plaintiff’s expert contends that on those occasions, DeMeerleer actually expressed homicidal thoughts specifically about his ex-wife and her current boyfriend. However, there were nothing in the records supporting this. Demurely then began seeing a girl. Demurrer’s mother wrote Dr. Ashby and expressed concerns about her son’s depression and homicidal thoughts. Dr. Ashby visited with Jan and advised him that he needed to keep up with his visits, but noted that Jan was normal and doing well. There was then a gap of three years without any treatment.
DeMeerleer then broke up with his girlfriend, and he spoke to someone at the Spokane psychiatric clinic about losing his job and separating from his girlfriend. He was asked to return to counseling and medication management. He had one appointment with Dr. Ashby after that, where he talked about mending his relationship with his girlfriend, as well as having an unstable mood and intrusive suicidal ideas. “He states when depressed he can get intrusive suicidal ideation, not that he would act on it but it bothers him. At this point it’s not a real clinical problem but we will keep an eye on it.” For the next couple of months, DeMeerleer was fairly normal, up until the point he committed the murders.
Essentially, there were two issues on this appeal. The first has to do with what duty a mental health professional has to protect third parties from the violent behavior of the professional’s patient or client. The second, has to do with whether the duty is owed when there is homicidal ideas, but no specific target identified. In order to have a duty to anyone else, there has to be a special relationship between the actor in the third person which imposes a duty upon actor to control the third person’s conduct or a special relationship between the actor in the other person which gives the other person a right to protection.
The Court of Appeals stated that it was a hit and miss relationship between Dr. Ashby and DeMeerleer, however they stated it was a question of fact as to whether this hit and miss relationship created a “definite, established, and continuing relationship.
The leading case on this type of thing is one that is often taught in law schools. The general rule is that “when a psychotherapist determines, or, pursuant to the standards of the profession, should determine, that a patient presents a serious danger of violence to another, the therapist incurs an obligation to use reasonable care to protect the intended victim of such danger.” Here, the theory is that if the psychiatrist, Dr. Ashby, would’ve delved deeper, he would’ve learned of specific homicidal ideations against the girlfriend. Washington, When analyzed a similar situation, developed a case called Petersen, took it one step further and applied the duty to any time a doctor should know that a patient’s proclivities might injure anyone, as opposed to a specific person. This is noted as an extreme position to take by a court, in that it would make patients fearful of telling their psychiatrists anything, for fear of being locked up:
Petersen presents extreme version of the duty imposed on mental health professional to protect others. The decision is criticized by commentators and rejected by most other states, including California. Commentators protest that the decision places an impossible burden on mental health professionals and unduly interferes in the physician-patient privilege. Patients will withhold thoughts of violence for fear the professional will disclose those thoughts to others. The bond of trust between patient and doctor will dissolve. According to critics of Petersen, mental health professionals will be quick to seek involuntary Treatment of the patient in order to avoid liability, thereby impinging on the freedom and civil rights of the mentally ill.
The court then look to the Involuntary Treatment Act. The act allows involuntary Treatment when people are either “gravely disabled” or present a “likelihood of serious harm.” The person is then detained for a period of up to 72 hours, where they can be further evaluated. As long as a mental health professional makes this initial determination in good faith and without “gross negligence,” they are immune from liability. The section also states that a mental health professional still has to take “reasonable precautions to provide protection from violent behavior where the patient has communicated an actual threat of physical violence against a reasonably identifiable victim or victims.” Here, the theory maintains again that Dr. Ashby should have been able to reasonably identify the victim had he delved deeper.
We read the two sections of RCW 71.05.120 together to grant immunity to mental health professionals except with five exceptions: (1) the professional performs duties in bad faith; (2) the professional performs duties with gross negligence; (3) the professional releases a patient before the expiration of an involuntary Treatment without notifying the county prosecuting attorney at least thirty days before release pursuant to RCW 71.05.330(2); (4) the professional conditionally releases, for purposes of outpatient treatment, the patient before the expiration of an involuntary Treatment without notifying the county prosecuting attorney at least 30 days before release under RCW 71.05.340(b); and (5) the professional fails to warn or take reasonable precautions to provide protection from violent behavior when the patient has communicated an actual threat of physical violence against a reasonably identifiable victim or victims.
So, essentially we have a conflict here between the Petersen case, and the immunity afforded under the Involuntary Treatment Act. The court reasoned that, because the immunity under the Involuntary Treatment Act only applies to proceedings under the Act, and not generally, the immunity only applies, “to the extent the Schierings argue that Howard Ashby should have involuntarily institutionalized Jan DeMeerleer. in a two to one majority, the court applied Petersen as a general duty to protect third parties.
Now, here’s how the Court of Appeals got it wrong. There is one and only one mechanism for protecting third parties generally from the mentally ill. That is, you can either commit the person under the Involuntary Treatment Act, or you cannot. Creating some vague generalized duty for mental health professionals, citing Petersen, only confuses the issue when you have the immunity afforded by the Involuntary Treatment Act.
The other thing they got wrong is a simple issue of clarity. The leading case that’s taught in law school deals only with readily identified persons for a reason. If there is someone identified, the psychiatrist or mental health professional can actually won them. If there is not a person actually identified what is a mental health professional to do? While it is true that Dr. Ashby may have been able to identify specific victim, the court did not spell this out as clear as it could have in this opinion. The Court of Appeals should of been very clear that the only claim surviving requires proof to a reasonable degree of medical certainty that Dr. Ashby would have been able to ascertain the identity of the victims and warn them, and that his failure to do so is the basis of the claims.
It is an interesting area, especially when you consider that are mentally ill so often are unable to get the treatment they need, and even if they do, may not stay on the treatment. This is the whole reason we have the Involuntary Treatment Act in the first place. It is an attempt to keep our mentally ill out of the criminal justice system, and instead get them the treatment they need.