We know that acts of violence against others are rare. We also know that the vast majority of people with behavioral health conditions, including mental illness and substance use disorders, do not engage in violent behavior. Acts of violence are, however, hugely significant for those involved and therefore significant to society and for our health care system. Research shows that a small percentage of those with a behavioral health diagnosis may have an increased risk for violence. We have also found that violent acts are more strongly associated with drug and alcohol use than mental health diagnoses. Mental health professionals who are working with patients at risk of violence have both a duty of care to the patient as well as a duty under certain circumstances to take measures to protect non-patient third parties.
In 2018, our Legislature included a budget proviso for our Collaborative to address uncertainty for clinicians resulting from a 2016 Washington State Supreme Court Case decision called Volk v. DeMeerleer. The decision held that a mental health professional who establishes a special relationship with a patient has a duty to protect any foreseeable victim from a patient’s dangerous propensities. We convened a workgroup of clinical and legal experts throughout this last year and now present our final recommendations here.
In our recommendations, our workgroup stresses that while clinicians can assess and monitor an individual’s risk factors for violence and use clinical decision-making aimed to mitigate risk of violence, they cannot predict violent acts with certainty. In a clinical setting, a binary approach (i.e., violent versus non-violent) has been replaced by risk assessment, which calls on the clinician to stratify dangerousness on the basis of risk factors that have been identified through population-based research. The workgroup recognizes as fundamental to high-quality patient care the patient’s right to and expectation of confidentiality and of care in the least restrictive environment. Nevertheless, the workgroup also recognizes the need to balance those priorities with mental health professionals’ position to take measures to protect non-patient third parties in certain circumstances.
The current legal framework in Washington State makes the implementation of a mental health provider’s duty of care and duty to protect untenable. In all likelihood, this environment will have negative downstream effects on the community. However, these negative impacts to access and quality of care can be remedied with changes in the laws to reduce the ambiguity presented by the Volk decision and the conflicting laws. We developed the following focus areas to balance these goals and outlines:
Read our report and recommendations and let us know how this will help your clinical practice.
Ginny Weir, MPH
Director, Bree Collaborative