Mental Health Professionals Now Subject to Expanding Tort Liability

The Washington Supreme Court recently extended the potential duty a psychiatrist owes to people harmed by their outpatient clients. In Volk v. DeMeerleer, 187 Wn.2d 241, 386 P.3d 254 (2016), the Court extended this potential duty to protect despite the absence of any threat to others made by the patient to the psychiatrist. This decision may have detrimental, long-lasting consequences for mental health professionals in Washington.

In Volk, the outpatient client of a psychiatrist killed his former girlfriend and one of her sons, and then committed suicide. Over nine years of treatment, the outpatient client had expressed suicidal and homicidal ideations to the psychiatrist, but never named his former girlfriend or her children as potential victims. In the final meeting before the patient committed the heinous acts, the patient told the psychiatrist that “he was stable” and that “he was having suicidal ideation but would not act on it.” Nevertheless, the Volk court held that the psychiatrist’s duty extends to any foreseeable harm by the patient, despite the psychiatrist’s lack of control over the patient and the absence of any threat of violence towards the victims. The Supreme Court reversed summary judgment to let the jury decide whether the patient’s acts of violence were foreseeable even though not specifically threatened.

The Volk decision raises multiple questions. First, how may a mental health professional meet the standard of care regarding non-patients? The Court suggested that the standard of care may require closer monitoring of compliance with medications and of the patient’s mental state, potentially warning others of the risk posed by the patient, and possibly involuntarily hospitalizing the patient. If a patient expresses any type of suicidal or violent ideations, no matter how minor, the prudent mental health professional will now make referrals to a specialist at the drop of a hat and begin obsessing over the patient’s medication regimen and follow-up appointments.

Second, may a mental health professional breach patient confidentiality absent a threat of harm? Although suggested as meeting the standard of care by the Volk court, disclosure of confidential patient information without some type of direct threat violates both Washington law and HIPAA. The Volk court reasoned that patient confidentiality may yield to “greater societal interests,” yet it is hard to imagine a medical professional disciplinary authority sharing this view.

And finally, may the reasoning of Volk be extended beyond psychiatrists? The possibility of tort liability under Volk potentially applies to other mental health professionals. This may include a family medicine nurse with an unstable patient, or even a school counselor with a troubled student. While causation issues may prevent an unfavorable outcome in such a situation, the mental health community should keep an eye out for how future Washington case law applies Volk.