THE DUTY TO WARN IN ILLINOIS

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Most mental health professionals are aware of the Tarasoff v. Regents of University of California case.  That 1976 California case held that when a therapist determines that a patient presents a serious danger of violence to another, that therapist has the duty to contact the intended victim, notify the police or take other steps reasonably necessary under the circumstances.  The Tarasoff case set the exception to the general rule that one owes no duty to control the conduct of another.  The court in Tarasoff emphasized that therapists have no general duty to warn of each threat but have a duty to act only where the therapist should have determined that a patient poses a serious danger of violence to a foreseeable victim.

 

In Tarasoff, the duty to warn arose because the decedent was a known, specifically foreseeable and identifiable victim of the patient=s specific threats.  In Tarasoff, the patient made good on the threats and the therapist was held liable for the failure to warn the victim.  The court in Tarasoff recognized that the open and confidential nature of therapeutic treatment encourages patients to express their innermost thoughts including threats of violence.  Since most of those threats of violence are never executed, the court noted that a therapist should not be encouraged to reveal such threats routinely.  Such disclosure could adversely affect the therapeutic alliance and also seriously disrupt the patient=s relationship with the persons threatened.  Courts in Illinois have commented on this issue by noting that human behavior is simply too unpredictable and the field of psychotherapy is too inexact to require that therapists be responsible for all the actions of their patients.  Illinois Courts have felt that Ato impose such responsibility without limit would be to place an unacceptable severe burden on those who provide mental health care to people and thereby ultimately reducing the opportunities for needed care.@  (See Eckhardt v. Kirts.)

 

It is important to note that Illinois has not adapted the Tarasoff rule.  Accordingly, what is the scope of a therapist=s duty to warn others of comments made by patients in a clinical setting in Illinois?  The cases in Illinois have stated that to hold a therapist to the duty to warn, the following must be present:

 

1.         The patient must make a specific threat of violence;

2.         The threat must be directed at a specific and identified victim; and

3.         A direct physician/patient relationship between the therapist and victim or a Aspecial relationship@ between the patient and the victim.

 

Numbers 1 and 2 above are easy to understand, however, Number 3 is really a legal issue.  This Aspecial relationship@ criteria is not defined in the relevant statutes.  The courts have identified Aspecial relationships@ to include an unborn child to a mother and penal institutions with physical custody of dangerous individuals.  If #1, #2, and #3 apply, then the therapist has the duty to warn and must take action.

 

In the case of Doe v. North Central Behavioral Health Systems, the plaintiffs were four minor children who were sexually abused by a minor defendant, David H.  The parents of the abused children brought suit against David H., his parents, and the mental health clinic that saw David as a patient.  The suit against the clinic alleged that while David H. was a patient at the clinic, he told his therapist that he was sexually abusing children in his apartment building and that he would continue to do so.  The plaintiffs alleged that the clinic failed to report the abuse.  The plaintiffs asserted that there was a duty to warn the parents of the victims. As an aside, in order to maintain a medical malpractice case, the court must find that there is a duty owed by the therapist to the patient or plaintiff.  The plaintiffs also asserted that the clinic had a common law duty to the abused children and that it was negligent to not report or attempt to stop the abuse.  The defense argued that the clinic had no direct contact or professional relationship with the abused children and therefore, had no duty to report (see No. 3 above).  The court felt that although David H. made specific threats of violence, and the violence was directed against a readily identifiable set of victims there was Ano direct physician/patient relationship@ between the clinic and the victims, nor was there a Aspecial relationship@ between David H. and the victims.  Accordingly, the clinic owed no common law duty to the victims and the case was dismissed.

 

When examining the issue of duty to warn, one must also look at the Illinois Mental Health and Developmental Disabilities Confidentiality Act.  Under the Confidentiality Act, communications between patients and therapists are confidential except where the Confidentiality Act specifically allows disclosure.  '11 of the Confidentiality Act contains a specific exception.

 

Records and communications may be disclosed:

 

(ii)        When, and to the extent, a therapist, in his or her sole discretion, determines that the disclosure is necessary to initiate or continue civil commitment proceedings under the laws of this State or to otherwise protect the recipient or other person against a clear, imminent risk of serious physical or mental injury or disease or death being inflicted upon the recipient or by the recipient on himself or another.

 

Another section of the Confidentiality Act mirrors the three part test set forth above. 

 

Under '11, records and communications may be disclosed:

 

(viii)      when, and to the extent, in the therapist=s sole discretion, disclosure is necessary to warn or protect a specific individual against whom a recipient has made a specific threat of violence where there exists a therapist-recipient relationship or a special recipient-individual relationship.

 

Interestingly, the sections noted above do not specifically instruct the therapist to whom the disclosure should be made.  Obviously, if there is a Aclear, imminent risk of serious physical or mental injury or disease or death@ then the therapist may warn the intended victim and may call the police. 

 

'11 of the Confidentiality Act also includes a Agood faith@ defense wherein it states that any person, institution or agency participating in good faith in the disclosure of records or communications under this section, shall have immunity from any liability, civil, criminal or otherwise that might result by reason of such action.  Furthermore, Agood faith@ shall be presumed. 

 

In the case of Albers v. Breen, the plaintiff was a student at a school who was being bullied by a number of other students.  The principal of the school wanted to know the names of the students who were bullying the victim and accordingly sent the victim to the student counselor.  The counselor asked for the names of the bullies and told the victim she would not share their names with anyone including the principal.  The counselor promised the victim that no one would find out that he revealed the names of the bullying boys.  Nevertheless, the counselor told the principal (without authorization) the names of the bullying boys.  Thereafter, the principal told one of the bullies that the victim complained about him after the bully denied the allegations of bullying.  The victim and the victim=s parents found out that the child=s confidential communication to the counselor had been breached and the bullies found out that the victim complained about them.  The victim and the parents sued the counselor, principal and school district alleging emotional distress and violation of the Confidentiality Act.  The court found that the counselor was not liable since she used Agood faith@ in the disclosure to the principal.  The counselor assessed that the victim was at risk of further immediate, serious and ongoing harm.

 

The Illinois case law in this area demonstrates there is no duty to warn potential victims absent a Adirect physician/patient relationship@ between the therapist and the victim or a Aspecial relationship@ between the patient and the victim. However, under '11(ii) the Confidentiality Act, the disclosure of the patient=s confidential communications regarding threats of violence to self or others is not dependent on this Arelationship@ criteria. Under '11(viii), this relationship criteria is required.