Working with Violent and Potentially Violent Individuals
by Jacqueline M. Melonas, RN, MS, JD and Marynell Hinton, MA

The deadly shoot-out at the U.S. Capitol and the school massacres which have occurred throughout the country in the last 12 months or so, have focused public attention on the issue of societal violence. Predictably, there has been a scramble to identify the cause of this new problem, the implication being that there must be a single variable at work which can be identified and fixed. The numerous causes proposed are numbingly familiar: mental illness; warped social values; access to guns; violence in the media; the decline of the family; poor parenting; poor schools; no religion; pure evil.

Unfortunately, actual knowledge about the epidemiology of violence is far from complete. Researchers have identified individual traits and situations which increase the likelihood of a person acting violently, but the ability to predict who, specifically, will become violent remains elusive.

Psychiatrists are in the forefront of working with violent and potentially violent individuals, and are called upon to balance the obligations of confidentiality and a "duty to warn". This article will discuss 1.) the balancing act that psychiatrists must perform, 2.) the particular twists present when dealing with minors, and 3.) risk management strategies to minimize potential professional liability while providing good clinical care. Despite the intensified stressors associated with caring for violent and potentially violent patients, the basic risk management issues remain the same – communication, documentation, and patient assessment that meet the accepted legal standard of care.

Confidentiality

An essential component of any therapeutic relationship is confidentiality. Knowing the boundaries of confidentiality can be especially important when working with violent and potentially violent patients, because, in such relationships, the ongoing act of balancing liability risks with ethical and legal obligations may have more potentially devastating consequences than usual.

In general, communications between a psychiatrist and patient are confidential based on ethical considerations and the nature of the therapeutic relationship. The information is protected legally by a privilege; usually the physician-patient or psychiatrist-patient privilege. With few exceptions, the privilege can be waived only by the patient or the patient’s legal representative. Individual state’s statutes and case law may define what information is considered confidential and what exceptions to the privilege exist.

Confidentiality involving communications with a minor is one of the more confusing and troubling areas of confidentiality rights. Rules governing disclosures about adults break down when applied to minors, because minors lack the same abilities and legal right to privacy as adults. For example, a frequent argument states that because parents must consent to treatment, and because parents are financially responsible for the care, they have the right to have complete information about their minor child.

Probably the best way to examine the confidentiality rights of minors is to divide them into two groups: very young minors, and adolescents. With very young minors, the psychiatrist is probably justified in treating the parent as the decision-maker. Many statutes explicitly state that parents have the right to otherwise confidential information about their minor child.

Usually, there is no clear distinction as to who is a very young minor and who is an adolescent. However, it seems reasonable that there be a connection between the authority to consent to treatment and the power to release one’s medical information. Some states have made the connection explicit.

Unfortunately, according minors the right to confidentiality only when they are able to consent to treatment leaves a great deal of gray area. Even when an adolescent cannot consent to treatment, he or she may have a strong desire for and an expectation of confidentiality. Therefore, as a general rule, adolescents should be accorded the same confidentiality rights as adults unless there are strong countervailing interests. One such overwhelming interest may be the safety of individuals other than the patient.

Duty to Warn

As society has become increasingly aware of and threatened by violence, courts have become increasingly critical of how the issue of violence is handled by psychiatrists. The belief that psychiatrists can or should be able to predict violent behavior is a basic assumption behind the liability associated with violent and potentially violent patient.

Until the mid-1970’s, psychiatrists faced little risk of personal liability for violent acts committed by patients. Then, in 1976, the landmark case Tarasoff v. Regents of the University of California established the precedent for a "duty to warn." The Tarasoff Court held that once a psychologist knows that a client poses a danger of violence to another, the psychologist has a duty to exercise reasonable care to protect the foreseeable victim of that danger. Discharging the duty may mean warning the potential victim, notifying law enforcement, or whatever other reasonable steps are necessary. Failure to warn may result in the psychologist being held liable for the client’s actions.

Most state courts have adopted some variation of Tarasoff and have applied it to the conduct of psychiatrists and other mental healthcare professionals. Many courts have continued to limit the duty to warn to identified potential victims. Other courts have expanded the duty to include persons not identifiable in advance. The latter situation usually arises where the psychiatrist fails to restrain the patient, either by failing to postpone the patient’s discharge or by failing to commit the patient.

A very few courts have rejected even a limited duty to warn. These courts have held that, absent a patient’s consent, the psychiatrist is prohibited from disclosing confidential information for any reason. Nevertheless, psychiatrists in those states should not assume that a duty to warn will never be imposed.

As frequently happens in the law, court decisions are codified by state legislatures. Most states now have a statute addressing dangerous patients. These statutes allow a psychiatrist to breach confidentiality when a patient poses a danger to others. Some statutes are permissive, allowing the psychiatrist to choose whether or not to warn. Other statutes impose a duty, leaving the psychiatrist no discretion. In almost all cases, there is an accompanying immunity statute which protects the psychiatrist from liability as long as he or she acts in good faith.

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