In December, 2016, the Washington State Supreme court decision in the case Volk v. DeMeerleer substantially changed the duty of mental health providers to warn potential victims of our clients. It is essential that you read this information, by Stephen Feldman, J.D., Ph.D. who has followed this case closely.
Volk v. DeMeerleer: An Explanation of effects on psychologists
By Stephen Feldman, J.D., Ph.D.
The Washington State Supreme Court recently decided the case of Volk v. DeMeerleer (No. 91387-1). Its holding is as follows:
we hold that after a special relationship is formed between a mental health professional and his or her outpatient ….. the mental health professional is under a duty of reasonable care to act consistent with the standards of the mental health profession, in order to protect the foreseeable victims of his or her patient.
The question that leaves us with is: what does that language from the Court’s holding actually mean that we have to do? It certainly means that the Court expanded the so-called Tarasoff standard regarding a mental health professional’s duty to warn a third party of potential violence. Now that duty, according to the Volk case, extends to any possible victim— even one that has not been specifically identified by the patient.
In other words, it means that the Court has expanded the Tarasoff duty of warning an identifiable third party to a broader duty to protect the public at large from the potentially dangerous acts of our clients. Therefore, simply stated, the court has changed the duty to warn a potential victim to the duty to protect the public generally.
So now instead of applying the clear three-part test of Tarasoff of 1. an actual threat of 2. physical harm to 3. an identifiable victim, we are now required to assess the likelihood of violence or dangerousness of a client in a manner that is “consistent with the standards of the mental health profession” in order to protect foreseeable victims. So, what are those “standards” the court has signaled it will impose?
One of the most likely protocols to employ to make that assessment to be in keeping with the standards of the mental health profession would be a protocol modeled on the lethality interview that you would employ when assessing a client for suicidality, i.e. a danger to oneself.
Typical of such an assessment would be to know or inquire into any history of violence or a pattern of physical aggression including developmental, psycho-social, employment and military histories. The assessment would also include some or all of the following:
a) A thorough and candid inquiry into your client’s level of motivation, specificity of plans and access to means
b) A discussion and assurance that the client is aware of the importance of keeping all relevant treatment providers and members of his or her support network informed of the risk status. This might include a physician or case-worker or probation officer or AA sponsor or relative
c) An assessment, as well, of the client’s ability and willingness to make those contacts, or do so yourself consistent with statutory permissions under RCW 70.02.050
d) An alliance with the client through a mutually designed treatment plan
e) An enhanced containment strategy including more frequent contact and aggressive treatment of the emotional and cognitive stability of the client
f) Clear provisions for emergency contact
g) Awareness of community resources and how to activate them.
h) Anticipation and discussion of possible destabilizing and/or anniversary events.
i) Maintaining ongoing monitoring of stability by repeated assessments throughout the period of risk.
j) Contacting the county designated mental health professional if you do not feel the prior steps that you have selected have been or can be successfully implemented.
Are all of these steps necessary? No. But you should consider them, and account for what you have done clearly in your chart notes. Also, you should chart what steps you have considered, and decided not to implement.
Just as important as all of the possible steps described above, is consultation. The more thoroughly you consult about a difficult clinical situation, the more likely you will be seen as acting “consistent with the standards of the mental health profession…”, which is the standard that your actions will be measured against.
A final word about the Volk case. The estate of the victim(s) sued the psychiatrist because they claim he was responsible for the murders committed by DeMeerleer because he failed to warn the victim. The trial judge dismissed the law suit because he said DeMeerleer never threatened the victims, or anyone else, therefore there was no duty on the part of the psychiatrist to warn anyone. In other words, the Tarasoff guideline requiring a warning was not met.
The Supreme Court decided that the trial judge was in error by using the Tarasoff guideline. It said that Tarasoff is not the law of Washington. The Washington law is found in the case of Petersen v. State of Washington (100 Wn.2d 421 (1983)), and the Petersen precedent requires the mental health professional to protect the public, not just an identifiable victim.
So now the case will be returned to the trial judge to apply the Petersen standard to determine if the psychiatrist will be held liable. To put it in the words of the Court:
“We hold that Ashby (the psychiatrist) and DeMeerleer (the patient) shared a special relationship, and that special relationship required Ashby to act with reasonable care, consistent with the standards of the mental health profession, to protect the foreseeable victim of DeMeerleer….The foreseeability of DeMeerleer’s victim is a question of fact appropriately resolved by the fact finder.”
Andy Benjamin, J.D., Ph.Ds and Lucy Homans, Ed.D. contributed to this article. For questions on this article, please email – do not telephone – WSPA Director of Professional Affairs, Dr. Lucy Homans at firstname.lastname@example.org
Please know that WSPA along with a number of other associations has introduced legislation to address the problems now facing providers as a result of the Volk decision. SB 5800 is working its way through the Legislature now. We may need all of your help in getting this “fix” through the Legislature, so if WSPA asks you to contact your legislator asking for support for SB 5800, please follow through! Thank you.
View the SB 5800amendment summary.0307