As mentioned earlier in this article, duty to protect laws typically do not impose a duty on the treating psychologist if a client is talking about someone who may be violent other than himself or herself. However, a related development unfolded a few years ago in California.
The Court of Appeal of California, Second Appellate District, Division Eight, ruled in November 2004 that a communication from a father of a patient to the patient's psychologist triggered the psychologist's duty to take action. In this case, the victim's parent sued the therapist for wrongful death based on professional negligence, alleging that the therapist's patient posed a foreseeable danger to the victim and that the therapist failed to discharge his duty to warn the victim or a law enforcement agency.
The patient's father told the therapist that his son was suicidal and had expressed a desire to harm his former girlfriend's new boyfriend. The patient voluntarily admitted himself to a hospital, but was released even though the therapist called the staff psychiatrist and recommended against release. The patient murdered the boyfriend and committed suicide.
The Court of Appeal held that a communication from a family member to a therapist made for the purpose of advancing a patient's therapy is a patient communication, and that a therapist's duty to warn a victim arises if the information leads the therapist to believe or predict that the patient poses a serious risk of grave bodily injury to another.
From a professional standpoint, the problem with this interpretation of the law is that it puts a psychologist in the position of having to assess a communication made by someone that the psychologist has not been treating or evaluating. That lessens the likelihood that a practitioner will be able to make determinations about credibility or intent. It also requires a health care professional to evaluate and make decisions about a client without having had first-hand communication from that client.
In summary, situations where violence is an issue in the therapy relationship can be complex and stressful. Knowing the relevant laws in your state, while also consulting with colleagues and other knowledgeable professionals, can help you make appropriate decisions about your duty to protect.
This article is the third in a series, “A Matter of Law,” about the practical effect of various laws and regulations on practicing psychologists.
PLEASE NOTE: Legal issues are complex and highly fact-specific and require legal expertise that cannot be provided by any single article. In addition, laws change over time. The information in this article should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding individual circumstances.