Volk v. DeMeerleer: Does it Impact the Duty to Warn?

The Supreme Court of Washington extended the duty “owed by medical professional[s] to a victim based on a special relationship between the mental health professional and the professional’s patient” to situations involving mental health outpatients. ¹ In July of 2010, a man with severe mental illness shot and killed his ex-wife and her son, before taking his own life. One of the victim’s sons sued the shooter’s psychiatrist for medical negligence. The issue on appeal was whether the Restatement (Second) of Torts § 315 special relationship duty applies in the context of outpatient psychiatric treatment–the court held that it does. The court analyzed the issue by equating § 315 special relationship duty and the affirmative duty articulated in Petersen v. State, 671 P.2d 230 (Wash. 1983) (en banc). In doing so, the court expressly recognized that it “relied primarily on Tarasoff, the seminal case expressing the duty owed by mental health professionals to the victims of their patients,” in deciding Petersen.

The court weighed five (5) policy concerns in determining whether to impose a duty on mental health professional in an outpatient setting:

[T]he psychotherapist’s ability to control the outpatient;
the public’s interest in safety from violent assault;
the difficulty inherent in attempting to forecast whether a patient represents a substantial risk of physical harm to others;
the goal of placing the mental patient in the last restrictive environment and safeguarding the patient’s right to be free from unnecessary confinement; and
the social importance of maintaining the confidential nature of psychotherapeutic communications. ²

While the court found that all five factors weighed in favor of extending the “§ 315 Petersen duty to the outpatient setting,” the court clarified “the § 315 Petersen duty does not require that the mental health professional make the correct determination of dangerousness every time the professional forms a mental health professional/outpatient relationship.” ³ Instead, the court explained the current standard as “the same duty imposed by Tarasoff and adopted by [the court] in Petersen–to act with reasonable care, informed by the standards and ethical considerations of the mental health profession, when identifying and mitigating the dangerousness of psychiatric patients.” ⁴

While the Supreme Court of Washington’s decision in Volk should cause mental health providers to reassess their mandatory disclosure policies and review their state mandatory disclosure laws, Volk does not impose a higher standard of care nor extend an affirmative duty to a class of persons not already protected under the Tarasoff standard. ⁵ Volk is a somber reminder that mental health professionals should always be vigilant and, perhaps, err on the side of disclosing when a patient exhibits violent thoughts and behavior.

Bear in mind also that some states have enacted statutory versions of a duty in warn in licensure statutes, e.g., Nebraska statutes have duty to warn language in the licensure statutes of clinical psychologists and licensed mental health practitioners. All other licensed professions rely on case law.

Julie A. Knutson

Sean T. Nakamoto (3L)

¹ Volk v. DeMeerleer, 386 P.3d 254, 262 (Wash 2016).

² Id. at 267.

³ Id. at 271.

⁴ Id.

⁵ Compare Tarasoff v. Regents of University of California, 551 P.2d 334, 345 (Cal. 1976) (“once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.”); with Volk, 386 P.3d at 272 (“[T]he mental health professional is under a duty of reasonable care to act consistent with the standards of the mental health profession and to protect the foreseeable victims of his or her patient.”).