The Michigan statute addressing the duty of a mental health professional to warn of a patient’s threats has not been the subject of much litigation since its enactment almost 30 years ago. In mid- July 2008, however, the Michigan Court of Appeals had occasion to examine it in Dawe et al. v. Dr. Reuvan Bar-Levav & Associates, P.C. et al. Before describing the decision, some background would be helpful.
In 1976, the California Supreme Court plowed new ground when, in the Tarasoff decision, it held that a psychiatrist who learns froma patient that the patient intends to do harmto an identified third partymust disclose that fact to the third party and the police, the psychiatrist-patient privilege notwithstanding. TheMichigan Court of Appeals adopted this reasoning in 1983, but theMichigan Supreme Court reversed that court in 1988, holding that the psychiatrist in question was protected by governmental immunity and, therefore, the Court of Appeals should not have reached the issue. Shortly thereafter, the Legislature enacted an amendment to the Mental Health Codemaking the Tarasoff principles the law inMichigan.
The “duty to warn” statute, MCL 330.1946, is quite straightforward. If (1) a mental health professional is presently treating a patient; (2) the patient communicates a threat of physical violence; (3) the threat is directed against a readily identifiable third person; and (4) the patient has the apparent intent and the ability to carry out the threat in the foreseeable future; then, the mental health professional has a duty to act as the statute prescribes, notwithstanding any privilege considerations. How does the statute command the mental health professional to act? The professional can do one or more of the following: (1) hospitalize the patient or initiate proceedings to hospitalize; (2) tell the third person of the threat and also tell the police; and/or (3) if the third person is a minor or is incompetent, tell a parent or guardian, the Department of Social Services and the police.
Viewed against this backdrop, the Dawe decision is interesting for two reasons.
First, plaintiff Dawe, who was a member of the therapy group with the patient and was injured when the patient went on a rampage, argued that the defendant psychiatrist had a general duty outside of the statute not to place the patient in group therapy because of the patient’s condition. The court flatly rejected this argument. The psychiatrist’s only duties were under the statute described above, and he had no duty whatsoever to decline to put the patient in the therapy group with plaintiff Dawe. Therefore, Dawe could not sue on a malpractice theory – that the psychiatrist had committed malpractice by placing her in a group with someone not suited for group therapy. She either satisfied the statute, or she had no basis to bring suit against the psychiatrist.
Second, plaintiff argued that the patient who made threats did so in a way that might be considered threats against all members of a therapy group of which the patient had been a part. Did the statute, which spoke of a “reasonably identifiable third person,” cover this situation? The court examined the evidence and held that there was no evidence that the patient made threats of physical violence against Dawe herself, but only that he wanted to hurt someone at defendant’s practice. There was no “readily identifiable person” and the psychiatrist had, therefore, no duty to warn any specific individual.
The first matter discussed above – the mental health professional’s only duty is under the statute and there is no separate malpractice claim under these facts – ought to be of some comfort to the mental health community. A mental health professional’s decision to treat a patient in a particular treatment setting (such as the therapy group in Dawe) does not give rise to a malpractice claim from other patients unless the provisions of the statute are met and the mental health professional fails to warn as the statute requires.
The second matter – when is there a “readily identifiable third person” – will continue to be a matter of judgment, and this decision has clarified the issue only a little. If the patient says “I’m going to kill Jane Doe,” the duty to warn is clear. If the patient says “I’m going to kill someone in your practice,” Dawe says there is no duty. But what if the patient had said “I’m going to kill someone in the six member therapy group of which I’m a part”? Is there a duty to warn then?
Subsection (4) of MCL 330.1946 offers some assistance. If the mental health professional can say “in good faith” that the standards discussed above are met, including whether there is a “readily identifiable third person,” he or she does not violate any statutory duty to the patient who has made the threat when he or she warns the members of the group. The mental health community must understand that whether the mental health professional acts “in good faith” will be decided by a judge or maybe a jury, either one of which may second-guess the decision to warn. What this means in fact is that, in any ambiguous cases, the professional will have to decide which of two potential lawsuits he or she would rather defend – a lawsuit brought by a patient that he or she lacked a “good faith” belief that the standards of the statute were met, or a suit seeking damages for injury or death caused by a failure to warn. The answer is obvious.
Thus, the decision in Dawe is helpful in the specific situation mentioned, but only highlights the potential issues that each mental health professional will face in many cases when a patient threatens harm to others.