Background on the Volk case:
In December of 2016 the Washington State Supreme Court rendered a decision in Volk v. DeMeerleer that has resulted in legal confusion regarding a practitioner’s duty to warn third parties when a patient explicitly or implicitly expresses a plan to harm another person, and their duty to protect the public at large from patients with “dangerous propensities” when a patient expresses non-specific plans to harm others. By this interpretation of law, clinicians, including LICSWs, could be seen as responsible for preventing violence by their current and former patients because of the “special relationship” that exists in psychotherapy.
Many clinicians and attorneys believe that the court’s decision will dramatically increase practitioner liability. In effect, the decision expands the practitioner’s duty to predict a potential for violence even if the patient has not expressed violent thoughts, and to warn third parties in the public not specifically named by the patient. Because the Volk case ultimately settled without a jury trial, the Volk decision stands and cannot be appealed. Following the 2016 decision an attempt was made to change the legal liability of mental health care providers in Washington State law to conform once again to recognized standards for duty to warn, but those efforts have failed, and for the near future any statutory fix is politically unlikely.
Why is a Volk fix so hard?
The hardest and most important part of advocating in Olympia is proving there is a problem that needs to be fixed. There are many ways to prove a problem; sometimes we use individual experiences, sometimes we use statistical data and hypothesis, and sometimes we point to a flaw in the law and demonstrate a legal need. But to be successful, this proof of problem is crucial.
Unfortunately, in the Volk case, although you may see the circumstantial problem, we lack a clear legal problem. Because the Volk case ultimately settled out of court and we do not have a jury decision in the case, all we are left with is a Supreme Court decision that said that the case COULD go forward. This leaves practitioners with questions regarding what our duties are to warn and/or protect, particularly as it pertains to unspecified third parties.
Beyond just the “proof of problem,” Volk comes at a time when the public and legislators are increasingly concerned about public safety. Despite evidence to the contrary, much of the public, and the legislators that represent them, believe that the epidemic of violence in this country is perpetrated by those with mental illness. In reality, we know that those suffering from mental illness are more likely to be victims of violence rather than perpetrators. Until our legislators have a better understanding of this nuanced issue, they will remain extremely reticent to change, or even clarify, the obligations mental health practitioners have in protecting public safety.
So, what can we do now?
At our request, the State’s 2018 Supplemental budget includes a small budget proviso that reads:
$40,000 of the general fund—state appropriation for fiscal year 2019 is provided solely to create a work group at the Robert Bree collaborative to identify best practices for mental health services regarding patient mental health treatment and patient management. The work group shall identify best practices on patient confidentiality, discharging patients, treating patients with homicide ideation and suicide ideation, recordkeeping to decrease variation in practice patterns in these areas, and other areas defined by the work group. The work group shall be composed of clinical and administrative experts including psychologists, psychiatrists, advanced practice psychiatric nurses, social workers, marriage and family therapists, certified counselors, and mental health counselors.
This budget proviso will allow representatives from various mental health professions to come together to work on best practices across disciplines, focusing on those areas that were seen as problematic in the Volk case. These best practices will, in and of themselves, be a legal defense against liability because adhering to best practices can be a legal defense against negligence.
Beyond working on these best practices, we need to begin educating our policymakers and the public about violence and mental health. We need to be partners on this issue. Then, unfortunately, we must wait for something that proves a problem. Given that this started as a lawsuit, the most likely scenario is another lawsuit, with a jury verdict that will directly point to the ambiguities in the current law and provide the motivation to fix it. In the meantime, we will continue finding ways to improve current policy that do not require a statutory change in liability.
What does this mean for my practice?
Naturally, the apparent expansiveness of this case creates some anxiety for us as practitioners. The best course of action is to continue to adhere to current best practice standards and to document our efforts to assess risk and create safety, thoroughly and completely. LICSWs are advised to continue to gather further information from clients who may be homicidal or suicidal and make informed judgments about what resulting actions to take. Consultation is one of the best ways to protect ourselves from liability--it is wise to include the names, contact information and time of consultation of any other professionals who have been contacted, along with documentation of risk assessment, safety planning, professional conclusions and any foreseeable victims of harm. If a client misses multiple appointments or falls out of contact, timely follow up, documented notifications of delinquency and case closure against clinical recommendation, are also responsible practice.
If a clinician determines that there is a threat of imminent harm, meaning that “harm is likely to occur at any moment or near at hand” (RCW 71.05.020(20)), the clinician may disclose the minimum necessary information needed to protect potential victims, to such parties as the police, Designated Mental Health Professionals, other mental health professionals, lawyers, doctors etc., and the potential victim themself. Prudent LICSWs should make clear, documented efforts to assess homicidal risk and comply with duty to warn. A formal risk assessment would also be helpful in minimizing liability and should be included in the patient record. Please refer to the following tool for Risk Assessment, developed and generously shared by Wellspring, for use in the case of concern about possible violent action by a client. You are also strongly encouraged to tap into the wealth of knowledge in the WSSCSW community as added support for general questions and dilemmas. Best practices like these will help us treat our clients ethically and professionally and promote safety throughout the communities we serve.