Risk Management Considerations When Treating Violent Patients

Kristen Lambert
Psychiatric News
Originally posted September 4, 2018

Here is an excerpt:

When a patient has a history of expressing homicidal ideation or has been violent previously, you should document, in every subsequent session, whether the patient admits or denies homicidal ideation. When the patient expresses homicidal ideation, document what he/she expressed and the steps you did or did not take in response and why. Should an incident occur, your documentation will play an important role in defending your actions.

Despite taking precautions, your patient may still commit a violent act. The following are some strategies that may minimize your risk.

• Conduct complete timely/thorough risk assessments.

• Document, including the reasons for taking and not taking certain actions.

• Understand your state’s law on duty to warn. Be aware of the language in the law on whether you have a mandatory, permissive, or no duty to warn/protect.

• Understand your state’s laws regarding civil commitment.

• Understand your state’s laws regarding disclosure of confidential information and when you can do so.

• Understand your state’s laws regarding discussing firearms ownership and/or possession with patients.

• If you have questions, consult an attorney or risk management professional.

The info is here.

How Should Physicians Make Decisions about Mandatory Reporting When a Patient Might Become Violent?

Amy Barnhorst, Garen Wintemute, and Marian Betz
AMA Journal of Ethics. January 2018, Volume 20, Number 1: 29-35.

Abstract

Mandatory reporting of persons believed to be at imminent risk for committing violence or attempting suicide can pose an ethical dilemma for physicians, who might find themselves struggling to balance various conflicting interests. Legal statutes dictate general scenarios that require mandatory reporting to supersede confidentiality requirements, but physicians must use clinical judgment to determine whether and when a particular case meets the requirement. In situations in which it is not clear whether reporting is legally required, the situation should be analyzed for its benefit to the patient and to public safety. Access to firearms can complicate these situations, as firearms are a well-established risk factor for violence and suicide yet also a sensitive topic about which physicians and patients might have strong personal beliefs.

The commentary is here.

Does Volk v. DeMeerleer Conflict with the AMA Code of Medical Ethics?

Jennifer L. Piel and Rejoice Opara
AMA Journal of Ethics. January 2018, Volume 20, Number 1: 10-18.

Abstract

A recent Washington State case revisits the obligation of mental health clinicians to protect third parties from the violent acts of their patients. Although the case of Volk v DeMeerleer raises multiple legal, ethical, and policy issues, this article will focus on a potential ethical conflict between the case law and professional guidelines, namely the American Medical Association’s Code of Medical Ethics.

Here is a portion of the conclusion:

The Volk case established legal precedent for outpatient mental health clinicians in Washington State. Future cases against clinicians for their patients’ harm to third parties (e.g., medical negligence, wrongful death) will be tried under the Volk standard. It will be up to the trier of fact to determine whether the victims of a patient’s violence were foreseeable and, if so, whether the clinician acted reasonably to protect them.

Without changes to this law, there is increased likelihood that future clinicians and employers in similar situations, fearful of being in Dr. Ashby’s position, will more willingly (and likely unhelpfully) breach patient confidentiality. This creates a dilemma for clinicians in Washington State, who could find themselves caught between trying to meet the requirements of the legal case and also adhering to their professional ethical guidelines.

The article is here.

State Supreme Court Ruling Expands 'Tarasoff' Duty for Washington State Clinicians

Psychiatric News Alert
Originally released January 3, 2017

A Washington state Supreme Court decision appears to significantly broaden the duty that psychiatrists and other mental health professionals in that state have to protect and warn potential victims of violence by a patient under their care.

In Volk v. De Meerleer, the Washington state Supreme Court expanded the so-called Tarasoff standard regarding a mental health professional's duty to protect and warn a third party of possible violence, asserting that the duty extends to any possible victim--even one that has not been specifically identified by the patient.

The ruling applies only to clinicians in Washington state. Although other states could conceivably adopt a similar standard, the ruling does not establish a legal precedent outside of Washington. (It was a 1976 case, Tarasoff v. Regents of the University of California, that established the principle that a mental health professional has the duty to protect a third party, specifically identified by a patient, that he or she may be potential victim of violence.)

Tarasoff has typically been interpreted to mean that the mental health provider owes a duty to the intended victim if the victim is identified or reasonably identifiable. But the new decision by the Washington state Supreme Court suggests that the duty is more expansive and that the provider may have an obligation to probe statements about violence to determine whether there is an intended victim and/or to infer intended victims from past sessions.

The decision creates a new category of "medical negligence," rendering clinicians in Washington state potentially legally liable if it is determined that they should have known someone would be a victim of violence. APA signed on to an amicus brief with the Washington State Medical Society and six other groups saying that a lower court's finding that mental health professionals owe a duty of care to the general public, not just to reasonably identifiable third parties, places an unfair burden on clinicians.

APA CEO and Medical Director Saul Levin, M.D., M.P.A., said the ruling is a troubling one. "The court's ruling in Volk v. De Meerleer places clinicians in Washington state in a difficult position and could have detrimental effects on the patient-psychiatrist relationship," he said. "To the extent that a similar standard of liability could be adopted in other states, it should be of concern to psychiatrists and mental health professionals everywhere. APA will continue to follow developments in Washington state and continue to advocate for a fair and rational approach to Tarasoff duties."

APA President Maria A. Oquendo, M.D., Ph.D., echoed those remarks. "Holding mental health professionals liable to third-party victims who were not  identifiable as targets of actual threats places an unreasonable burden on mental health professionals," she said. "This decision marks a significant departure from previous case law concerning Tarasoff duties. Leaving it to a jury to determine whether a mental health provider 'should have known' that a patient would be dangerous has a real potential to interfere with treatment of mental health patients."

Marvin Swartz, M.D., chair of the APA Committee on Judicial Action, told Psychiatric News that the decision potentially undermines the traditional understanding of physician liability. "Expanding physician liability to a new doctrine of 'medical negligence' suggests that courts and juries might begin to adopt a liability standard akin to strict product liability rather than the established standards of medical malpractice," he said. "The likely result would be a serious undermining of the physician/patient relationship."

Lawyer told police of client's alleged plot after speaking with ethics hotline

By Debra Cassens Weiss
American Bar Association Journal
Originally published January 12,2016

A Pennsylvania lawyer revealed his client’s alleged plot “take back” the home of his ex-girlfriend using an AR-15 rifle and body armor after consulting with the state bar’s ethics hotline, police say.

Revelations by the lawyer, Seamus Dubbs of York, likely saved lives, police say. The York Daily Record has a story.

The client, Howard Timothy Cofflin Jr., told police after his arrest that he planned to kill the ex-girlfriend as well as anyone who tried to stop him, according to court records cited by the York Daily Report. Charging documents said he planned to decapitate the ex-girlfriend and to go to war with state police, Pennlive.com reports. He also had a plan to bomb state police barracks, police said.

The article is here.

Tarasoff's catch-22.

By Stephen R. Huey
The American Psychologist
2015 Apr;70(3):284-5. doi: 10.1037/a0039064

Abstract

Comments on the article by D. N. Bersoff (see record 2014-28692-002). Bersoff poses a much-needed challenge to the rationale of laws based on Tarasoff v. Regents of the University of California (1976), which exist in most states and require therapists to warn the intended victim, police, and/or others when a patient voices serious threats of violence. If Tarasoff-related laws were ever to be modified, research support would be required. To begin with, what is the experience of other countries that happen to address this issue differently and of the seven states that, according to Bersoff, have not adopted Tarasoff-related requirements? Another question is whether patients who are unwilling to invite the consequences of therapist disclosure ever reveal reportable intentions to their therapists anyway-say, by mistake or impulse-thus making current law marginally useful? Rules that undercut sacrosanct confidentiality create a catch-22 in which the indisputable ethical necessity of informed consent has an unintended consequence- namely, therapy is preceded by informed consent but precluded by it.

The entire article is here.

The Tarasoff Rule: The Implications of Interstate Variation and Gaps in Professional Training

By Rebecca Johnson, Govind Persad, and Dominic Sisti
J Am Acad Psychiatry Law 42:4:469-477 (December 2014)

Abstract

Recent events have revived questions about the circumstances that ought to trigger therapists' duty to warn or protect. There is extensive interstate variation in duty to warn or protect statutes enacted and rulings made in the wake of the California Tarasoff ruling. These duties may be codified in legislative statutes, established in common law through court rulings, or remain unspecified. Furthermore, the duty to warn or protect is not only variable between states but also has been dynamic across time. In this article, we review the implications of this variability and dynamism, focusing on three sets of questions: first, what legal and ethics-related challenges do therapists in each of the three broad categories of states (states that mandate therapists to warn or protect, states that permit therapists to breach confidentiality for warnings but have no mandate, and states that give no guidance) face in handling threats of violence? Second, what training do therapists and other professionals involved in handling violent threats receive, and is this training adequate for the task that these professionals are charged with? Third, how have recent court cases changed the scope of the duty? We conclude by pointing to gaps in the empirical and conceptual scholarship surrounding the duty to warn or protect.

The entire article can be found here.

Doing their duty: An empirical analysis of the unintended effect of Tarasoff

By Griffin Sims Edwards
Journal of Law and Economics, Vol. 57, 2014
Emory Law and Economics Research Paper No. 10-61

Abstract

The seminal ruling of Tarasoff v. Regents enacted a duty that required mental health providers to warn potential victims of any real threat to life made by a patient. Many have theorized that this required breach of confidentiality may have adverse effects on effective psychological treatment - but the question remains unanswered empirically. Due to the presence of duty to warn laws, patients might forego mental health treatment that leads them to violence. Using a fixed effects model and exploiting the variation in the timing and style of duty to warn laws across states, I find that mandatory duty to warn laws cause an increase in homicides of 5%. These results are robust to model specifications, falsification tests, and help to clarify the true effect of state duty to warn laws.

The entire article is here.

Focus on Mental Health Laws to Curb Violence Is Unfair, Some Say

By ERICA GOODE and JACK HEALY
The New York Times
Published: January 31, 2013

In their fervor to take action against gun violence after the shooting in Newtown, Conn., a growing number of state and national politicians are promoting a focus on mental illness as a way to help prevent further killings.

Legislation to revise existing mental health laws is under consideration in at least a half-dozen states, including Colorado, Oregon and Ohio. A New York bill requiring mental health practitioners to warn the authorities about potentially dangerous patients was signed into law on Jan. 15. In Washington, President Obama has ordered “a national dialogue” on mental health, and a variety of bills addressing mental health issues are percolating on Capitol Hill.

But critics say that this focus unfairly singles out people with serious mental illness, who studies indicate are involved in only about 4 percent of violent crimes and are 11 or more times as likely than the general population to be the victims of violent crime.

And many proposals — they include strengthening mental health services, lowering the threshold for involuntary commitment and increasing requirements for reporting worrisome patients to the authorities — are rushed in execution and unlikely to repair a broken mental health system, some experts say.

“Good intentions without thought make for bad laws, and I think we have a risk of that,” said J. Reid Meloy, a forensic psychologist and clinical professor at the University of California, San Diego, who has studied rampage killers.

The entire story is here.

Accused gunman's doctor, university face lawsuits

By Jim Spellman,
CNN
Originally published January 17, 2013


The university psychiatrist who treated the accused gunman in last year's deadly Colorado theater rampage could face more than a dozen lawsuits that blame her and the school for not properly handling James Holmes' treatment.

At least 14 people have filed legal documents indicating they are planning to sue the University of Colorado Denver and Dr. Lynne Fenton for negligence.

Holmes, 25, was a doctoral student in neuroscience at the university.

Fenton has testified that her contact with Holmes ended on June 11, more than a month before he allegedly walked into a crowded movie theater in Aurora, Colorado, and opened fire, killing 12 people and wounding 58 others during a screening of the new Batman film.

She said she later contacted campus police because she was "so concerned" about what happened during her last meeting with him, but she declined to detail what bothered her.

The entire story is here.

Colo. man plotted to kill children, president

By 9News
Originally published November 14, 2012


9Wants to Know has learned a Colorado man is in federal custody after plotting to kill President Barack Obama and kill children on Halloween night in Westminster.

Sources tell 9Wants to Know Mitchell Kusick's plan involved stealing a family member's shotgun and using it to shoot children on Halloween and assassinate the president in Colorado.

Officials do not know when he wanted to kill the president.

The restraining order filed in Jefferson county court says Kusick "stole a shotgun from his aunt's house, hid the weapon, attempted to purchase ammunition for the gun" and then told his therapist about his plan.




The entire story is here.

James Holmes' psychiatrist went to cops with concerns about a patient

By John Ingold and Jeremy P. Meyer
denverpost.com
Originally published August 30, 2012

Here are some excerpts:

On the day she last saw James Holmes, University of Colorado psychiatrist Lynne Fenton went to a campus police officer with concerns about a patient.

Fenton testified Thursday during a hearing in Holmes' murder case that she had no contact with Holmes after June 11. That same day, Fenton said, she contacted Officer Lynn Whitten about a patient. Fenton did not identify the patient, citing the confidentiality issues that were the focus of Thursday's hearing.

"I was trying to gather information for myself," Fenton said.

(cut)

The purpose of the hearing was for prosecutors and defense attorneys to debate whether a notebook Holmes mailed to Fenton the day before the July 20 rampage, which also left 58 injured, is a confidential communication between a doctor and a patient. The defense says it is. Prosecutors believe they should be able to look at it.

The hearing ended Thursday unfinished, and the issue will be taken up again Sept. 20.

The entire story is here.

Thanks to Gary Schoener for this story.