January 25, 2010
DUTY OF MENTAL HEALTH PROFESSIONALS TO WARN OF POTENTIALLY VIOLENT CONDUCT BY PATIENTS
By: Emilee Mooney Scott, Legislative Fellow
You asked whether mental health professionals have a duty to warn law enforcement officials or potential victims of potentially violent conduct by patients. This report updates the Connecticut portion of OLR report 98-R-0682.
Connecticut statutes allow, but do not require, psychologists, psychiatrists, marital and family therapists, social workers, and licensed professional counselors to disclose information that would otherwise be confidential between the patient and therapist when they believe a serious risk of imminent personal injury to third parties exists. The statutes applying to the different mental health professionals are worded slightly differently. They all authorize disclosure, but they do not require it nor do they place an affirmative duty to warn on the mental health professional. The statutes do not specify to whom the information may be disclosed.
Mental health professionals may be held civilly liable under common law, however, if they fail to warn an identifiable victim of an imminent physical threat. The common law duty to warn was initially articulated in a 1976 California Supreme Court case, Tarasoff v. Regents (17 Cal. 3d 425). Tarasoff held that therapists have an obligation to warn potential victims when they become aware of serious danger posed by their patients. While Connecticut's Supreme Court has declined to find a violation of the duty to warn in the factual situations presented to it, Connecticut courts have held that such a duty exists.
Communications between mental health professionals and patients are generally confidential and cannot be disclosed to a third party without the patient's consent. Mental health professionals may disclose privileged communications without the patient's consent in certain circumstances specified by the following statutes:
1. Psychologists: when they believe “in good faith that there is risk of imminent personal injury to the person or to other individuals or risk of imminent injury to the property of other individuals” (CGS § 52-146c(c)(3)).
2. Psychiatrists: when they determine “that there is substantial risk of imminent physical injury by the patient to himself or others” (CGS § 52-146f(2)).
3. Marital or family therapists: when they believe “in good faith that the failure to disclose such communications presents a clear and present danger to the health and safety of any individual” (CGS § 52-146p(c)(2)).
4. Social workers: when they determine “that there is a substantial risk of imminent physical injury by the person to himself or others” (CGS § 52-146q(c)(2)).
5. Licensed professional counselors: when they believe “in good faith that the failure to disclose such communication presents a clear and present danger to the health or safety of any individual” (CGS § 52-146s(c)(4)) or believe “in good faith that there is risk of imminent personal injury to the person or to other individuals or risk of imminent injury to the property of other individuals” (CGS § 52-146s(c)(5)).
COMMON LAW DUTY TO WARN
The common law duty to warn was initially articulated in a 1976 California Supreme Court case, Tarasoff v. Regents (17 Cal. 3d 425). The case arose after a man named Poddar told his psychologist of his intention to kill an unnamed but readily identifiable woman, Tatiania Tarasoff. The psychologist wished to have Poddar committed, but his supervisor disagreed. No one warned Tatiania or her parents of her peril, and Poddar murdered her. The court held that when:
a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances (Tarasoff p. 431).
The Connecticut Supreme Court has found that a duty to warn exists but has not found anyone to have violated that duty under the factual situations presented to it. For example, in Kaminski v. Fairfield (216 Conn. 29, 37(1990)) the Supreme Court said that Tarasoff “is distinguishable both because the plaintiffs did not have a professional relationship with [the perpetrator]…and because the defendant was not a specifically identifiable victim.” In Fraser v. United States (236 Conn. 625 (1996)), the court was asked to decide if psychotherapists assume a duty to exercise control over the out patients they treat in order to prevent the out patients they treat from committing an act of violence against a third person. The court chose to narrowly decide the question, concluding that there was no such duty but limiting the conclusion to situations where the outpatient was not known to be dangerous and the victim was neither readily identifiable nor within a foreseeable class of victims (Fraser at p. 630).
Later Connecticut cases have interpreted Fraser as acknowledging a duty to warn under particular factual circumstances. In Jacoby v. Brinkerhoff (250 Conn. 86, 96 (1999)), the Connecticut Supreme Court held that under Fraser a psychotherapist has the duty to warn of possible violence by a patient only if there is “an imminent risk of serious personal injury to identifiable victims.” The court stressed that the threat must be of physical violence, not damage to property or to the plaintiff's marriage. In at least two instances, Connecticut Superior Courts have allowed cases to go forward so juries could decide whether the factual standards outlined in Fraser had been met (E.g. Roesler v. Reich, Superior Court, Judicial District of New London, at Norwich, No. 128514, May 5, 2006, 2006 Conn. Super. LEXIS 1316; Schlegel v. New Milford Hosp., Superior Court, Judicial District of Waterbury, at Waterbury, No. X02CV 960071253S, May 9, 2000, 2000 Conn. Super. LEXIS 1196).
In a case interpreting Fraser, the federal District Court for the District of Connecticut held that a “psychiatrist has a duty to speak where harm to identifiable victims is a foreseeable consequence of his silence” (Garamella v. New York Medical College, 23 F. Supp. 2d 167, 175 (D. Conn. 1998)). In Garamella, the court allowed the case to continue so a jury could decide whether the psychiatrist had a duty to warn others based on his patient's statements. The patient, himself a student training to be a psychiatrist, revealed that he was a pedophile who intended to work with children. The psychiatrist did not warn the patient's supervisors at the hospital at which he was training, and the patient sexually assaulted a young boy. The court held that psychiatrists do have a duty to warn under some circumstances, and that a jury must decide whether the necessary conditions had been met. It is possible that Connecticut state courts would use this reasoning if presented with the right set of facts.