Patients Who Are a Danger to Themselves or Others:
Best Practices for Risk Reduction
(November/December 2000)
By Bonnie R. Benitez, Attorney
Previously employed with CAMFT
[The information contained in this article is designed to assist therapists in dealing with dangerous patients. It is important to note that both clinical and legal consultations are critical components of a sound practice, particularly when faced with a patient in crisis.]
There are many misconceptions about how a therapist should act when faced with a dangerous patient. This article will provide a series of guidelines for the reduction of exposure to risk or liability, as well as practical ways in which therapists can improve their skills in dealing with a dangerous patient, or other crisis situation.
EDUCATION
Unfortunately, because such situations involve legal issues that are confusing and often frightening to many therapists, the tendency is to avoid, rather than embrace them. Many therapists go about their business as clinicians hoping that they will not be faced with these troubling situations. And much like the old “ignore it and it will go away” theory – it does not work! If some or all of the information presented in this article sounds unfamiliar, you probably need to step up your legal education. When is the last time you attended a legal/ethical workshop? If it has been more than a couple of years, it has been too long.
The key to understanding how to best handle dangerous patients is knowledge. The knowledge necessary is both clinical and legal. This knowledge can be gained in formal education, continuing education, by reading professional publications and journals, participating in consultation groups, accessing other professionals made available to you by your professional association, and through healthy relationships with trusted colleagues.
The standards to which therapists are held in making judgments of a legal/ethical nature are established by state law and by your profession. Are you aware that every member of the profession is expected to be aware of and knowledgeable about what is published within his/her professional organization’s publication, whether he/she is a member of the organization or not?
Assess your level of knowledge. Regularly read the publication of your professional organization in its entirety. Regularly review the Ethical Standards of your profession. Consult. Attend workshops on legal/ethical issues. Ask questions. Get answers. Document. Be prepared with a plan before you are faced with a crisis.
POLICIES
The worst time for a therapist to contemplate what to do in a difficult situation is in the midst of the situation itself. Rather than wait until you find yourself reacting to a dangerous patient, take the time to develop policies and procedures to assist you, your colleagues, subordinates and supervisees in a crisis. Put all policies and procedures in writing, have trusted colleagues review them, educate your staff on the policies and create useful forms to help guide you and your staff through these difficult situations. Remember, when you are faced with a crisis, that which you ordinarily know and well understand may be difficult to carryout. Having an established protocol may serve as a helpful guide through this bewildering process.
RISK ASSESSMENT
Risk assessment involves both the gathering of information and analysis of risk once the information has been gathered. A therapist who knows what information may be relevant to assessing risk makes an effort to gather that information effectively. This may involve gathering information from several sources: patient records, patient interviews, and at times, third party interviews.
Patient Records
During the intake process, do you ask the patient whether he/she has previously received mental health treatment? If so, do you get authorization to request the records from the prior therapist as a part of your initial assessment? Has the patient ever been involuntarily detained or voluntarily committed him/herself for treatment for any mental disorder, eating disorder or abuse of alcohol or drugs? What better way is there to assess a patient’s propensity for violence than his/her historical behavior?
What about current treatment records? Is your treatment being coordinated with the patient’s physician or psychiatrist? Have you discussed with the physician or psychiatrist any medications the patient is currently taking and the effects of such medications on the patient’s mental or emotional well-being? Keep in mind physicians, not just psychiatrists, prescribe the majority of psychotropic medications. Are you treating the patient as a part of a hospital or other organization in which other clinicians are also involved? Are you engaging in regular consultation with other professionals who may be involved in the treatment of the patient?
Therapists who are aware of prior treatment may be putting themselves at great risk when they do not take reasonable steps to gather records and other information related to the prior or other current treatment.
Patient Interviews
Many therapists take the time to assess for suicidal ideation, but neglect to assess for violent thoughts or tendencies. Patients should be asked directly about how they deal with anger, violence in their past both as a victim and as a perpetrator. While patients may be untruthful, they are often seeking treatment for good reason and may be forthcoming about such experiences or thoughts.
Third Parties
When authorized to do so by law or by the patient him/herself, significant others, family members and close friends can provide useful insight for therapists. With the patient’s knowledge and written consent, therapists can establish telephone contact with a significant other, or have the significant other attend a collateral session with the patient.
Note: In such a case, make sure that the significant other is informed that he/she is not your patient, you do not owe him/her a duty of confidentiality, and he/she is being seen (or spoken to) only for the purpose of treatment of the patient.
The risk of potential harm to another may result from a history of violent behavior, from actual threats, from traumatic events that are currently a result of a medical or mental imbalance or disorder. While a therapist’s duty is not necessarily to predict dangerousness, a thorough assessment of all factors may reveal a potential for dangerousness that was not previously considered. California Civil Code Section 43.92, also known as the Tarasoff Immunity Statute (see box), spells out what therapists should do if they want to avoid liability when faced with patients’ threats of violence towards identifiable victims. The exact language of the statute is critical to understanding how to assess whether there exists a duty to warn. It states, that there shall be no liability on the part of a therapist for failing to warn and protect from a patient’s threatened violent behavior “where the patient has communicated to the psychotherapist a serious threat of violence against a reasonably identifiable victim or victims,” and the therapist makes a reasonable effort to communicate the threat to the victim or victims and to a law enforcement agency.
Let’s focus on the threat of violence. In order for a therapist to know whether he/she has a “duty to warn and protect” under this statute, the therapist must assess the risk by analyzing the following criteria.
Risk Analysis
The threat must be a threat.
Is the threat vague or clear? Is the patient merely expressing a thought, dream or desire to harm the victim that he/she is not inclined to act on, or is the patient seriously contemplating some action?
How can a therapist distinguish between a vague and a clear threat? Ask further questions. Look for a plan. If the threat appears to be well-thought-out or clear, move to the next step. If the threat seems vague or not thought-out, make reasonable inquiry, seek clinical and legal consultation (call CAMFT), deal with clinical aspects of anger, regularly re-visit the issue with the patient, and maintain thorough records.
The threat must be serious.
Is the harm imminent? Does the patient have a means by which to carry out the threat? (e.g. possession of a gun, etc.) Is the threat conditioned upon some other occurrence? (e.g. “When I get to New York, I’m going to shoot him.” “When he gets out of prison I am going to…” “If I am convicted, I will …” “If she moves back to California, I will…”) Ask questions. Is the patient going to New York? Does the patient have the means by which to get to New York? Does the patient have access to a gun? Does the patient have a plan?
The threat must be of violence.
A violent act is one that involves bodily harm to a person. However, infection with a contagious disease is not violence. (e.g. “I don’t care if I am HIV positive. I’m not going to tell my significant other and I am not going to use protection.”)
The victim must be reasonably identifiable.
Is the victim identifiable by name or otherwise? Can the therapist reasonably identify the victim? If the victim is not identifiable, make a reasonable inquiry, seek clinical and legal consultation, and document accordingly.
RISK MANAGEMENT
If the communication presents a threat, if the threat communicates an act of physical violence, if the threat is serious, is against a reasonably identifiable victim, and the danger is imminent (likely to occur in the readily foreseeable future) the therapist must make a reasonable effort to communicate the threat to the victim or victims, and to a law enforcement agency. According to Section 43.92 of the Civil Code, if the therapist makes these disclosures, the therapist will be immune from monetary liability.
If the therapist determines that the threat of violence does not necessitate a “Tarasoff” warning, the therapist may still be permitted to disclose relevant confidential information under Evidence Code Section 1024 (see below). Under this exception to the psychotherapist-patient privilege, a therapist is permitted to disclose a confidential communication when the therapist has “reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and (emphasis added) that disclosure of the communication is necessary to prevent the threatened danger.” This right applies not only to patients who pose a danger to others, but to themselves as well. In the case of a suicidal patient, a therapist may choose to alert a significant other or family member as a part of a comprehensive suicide prevention plan. Because Section 1024 also applies to the potential for property damage, it provides greater latitude for therapists when dealing with dangerous patients.
Whether the therapist determines that a warning is required or not, a risk may still exist and must be managed. Here, a plan should be developed for further assessing and monitoring the risk. Clinical and legal consultation should be sought, and a range of preventative actions should be considered. The therapist should express his/her concern to the patient and work with the patient to develop an agreement and a plan for the continued treatment and possibly refer the patient for a medication and/or psychiatric evaluation. Vigilant documentation of all such discussions and agreements with the patient is imperative, as well as documentation of discussions with all consultants.
DOCUMENTATION
An essential element of limiting exposure is good documentation. Therapists should document any threat or perceived risk of potential violence in the patient record, noting the date it was received, and the content of the information. Therapists must make note of any action taken in furtherance of the taken to protect the intended victim from danger (e.g. commitments of the patient, agreements entered into, referrals to others for evaluation, warning the victim, contacting law enforcement, etc.). It is also essential to include notes as to the rationale for the action, and any communication or action that demonstrates a good faith effort to attend to the risk.
ETHICS AND RESPONSIBILITY
Assessing and reacting to dangerous patients involves making calculated risks. Sometimes you may feel you are expected to be clairvoyant. You will make errors in judgment. The best you can do is to arm yourself with education and strong clinical skills. There may be times when you learn of a violent act committed by your patient from the newspaper or the police. It is during these times that you must be most astute and ethically and legally conscious. Do not fall into the trap of reacting out of fear and panic. Hindsight is 20/20 after all. However, even if an error was made, never fall into the trap of wanting to unethically or illegally try to correct an error. An example of this would be tampering with records. Perhaps including some comments or other information in the patient’s record that, while factually correct, was omitted by the therapist out of error or neglect. The records are what they are and should not be altered in any way.
Therapists who find themselves reacting to the knowledge of a violent act, perpetrated by a patient, will often feel responsible or guilty. It is, at the very least, traumatic for a therapist when a patient kills, maims or abuses an innocent victim. Therapists may want to talk through their feelings of responsibility or guilt. However, such a catharsis should be limited to the therapist’s own professional mental health counselor, not to law enforcement or a relative of the patient or victim. Anything that is said by the therapist to those involved could only serve to harm the therapist and may even inspire a lawsuit.
Civil Code Section 43.92. Psychotherapists; duty to warn of threatened violent behavior of patient; immunity from monetary liability
(a) There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to warn of and protect from a patient's threatened violent behavior or failing to predict and warn of and protect from a patient's violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.
(b) If there is a duty to warn and protect under the limited circumstances specified above, the duty shall be discharged by the psychotherapist making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency.
Evidence Code Section 1024. Exception: Patient dangerous to himself or others
There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.
There are other measures that may be entertained by a therapist faced with a dangerous patient. Depending upon the assessed level of danger, a therapist may decide to consider other preventative actions, including intensified treatment through a “marathon” therapy session or the increased frequency of sessions. If a therapist determines that a “Tarasoff” warning is not required, he/she may decide to take actions that would forestall or possibly negate the opportunity for the violent act by hospitalizing the patient either through voluntary hospitalization or involuntary commitment. A therapist considering involuntary commitment should provide either law enforcement or a local mobile crisis team with a statement describing the nature of the danger. Upon determining whether probable cause exists for 72-hour treatment and evaluation, they may take the patient into custody and place the patient in the appropriate facility (see Welfare and Institutions Code Section 5150 below).
Welfare and Institutions Code Section 5150. Dangerous or gravely disabled person; taking into custody; application; basis of probable cause; liability
When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72?hour treatment and evaluation.
Such facility shall require an application in writing stating the circumstances under which the person's condition was called to the attention of the officer, member of the attending staff, or professional person, and stating that the officer, member of the attending staff, or professional person has probable cause to believe that the person is, as a result of mental disorder, a danger to others, or to himself or herself, or gravely disabled. If the probable cause is based on the statement of a person other than the officer, member of the attending staff, or professional person, such person shall be liable in a civil action for intentionally giving a statement which he or she knows to be false.
This information is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.
This article appeared in the November/December 2000 issue of The California Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.
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