January 15, 2018

Volk decision: A few words make a huge difference

Jennifer Hanscom, Executive Director/CEO

We have been deeply concerned about the Washington State Supreme Court's decision in Volk v. DeMeerleer. As you may recall, that decision substantially expanded the responsibility of physicians and other health care providers to warn all foreseeable victims of violence if a patient under their care makes a specific threat during outpatient treatment.

What a difference a few words can make. The language revision from previous state law, which called for notification to a "reasonably identifiable victim," to the new language of "all foreseeable victims," clearly has a profound impact on our members and the patients they serve.

From the moment that decision was announced, the WSMA’s legal and legislative teams worked aggressively to oppose such an unreasonable and far-reaching expectation of law. In fact, we assembled a group of prominent national and state organizations to participate in an initial amicus curiae brief at the state Supreme Court, followed by a second amicus brief asking for reconsideration of the court’s unfortunate decision.

Stymied by the court, during the 2017 legislative session the WSMA worked with numerous partners to achieve a correction in law that would protect physicians and their patients from this mandate. Rather than make a correction to the law, the legislature instead elected to fund a study regarding the impacts of the court’s decision.

That recently published study, conducted by the University of Washington School of Law, echoed many of WSMA’s concerns, noting the following conclusions:

• The Volk decision substantially broadened the duty of physicians and other providers to protect and warn third parties in the outpatient setting when a patient makes a threat of physical violence.
• The decision created different levels of duty to warn and protect: The broader duty to warn and protect all foreseeable victims in the outpatient context, and ironically, a narrower duty to warn or protect reasonably identifiable victims of a patient's threat in the involuntary commitment inpatient context.
• Many physicians and other mental health providers are worried that their relationships with patients in the outpatient setting may be compromised by the broad duty to warn and protect:
• 70 percent of mental health physicians and other providers are considering changes to their practice to forestall liability.
• 50 percent of mental health physicians and other providers surveyed indicated they had already instituted changes in their practices and the manner in which they will treat potentially violent patients.
• The study reports that Washington state is now an outlier compared to the rest of the country regarding the duty to warn and protect in face of a patient's threat.

With the 2018 legislative session now convened, what policy makers plan to do with this study is uncertain. A legislative approach to address the devastating impact of the Volk decision faces strong opposition from some members of the House Judiciary Committee who do not believe that the Volk decision changed the law, contrary to the findings of the UW study. Whatever happens, the WSMA will continue to seek options—such as a legislative work group or legislative efforts—to reconcile the different duties to warn and protect.

In the meantime, what’s a physician to do?

While no assessment or checklist can fully protect a physician under this new law, the WSMA recommends that physicians who treat patients with violent tendencies or ideations consider implementing the following guidelines:

• Continue to use reasonable care to act consistent with the standards of your profession.
• Complete and update suicide and violence risk assessments with findings documented in the patient’s medical record.
• Develop a policy and procedure to assess whether a patient has dangerous propensities and use it consistently.
• Document in the patient’s medical record why you reached your clinical decision and measures you recommend to mitigate potential risk, even when you are assessing a patient who has violent tendencies or ideations and do not believe the patient will harm others.
• In all cases, carefully consider and document in the patient’s medical record the measures taken to mitigate risk. Measures fall into two categories: measures to treat the patient and measures to warn potential victims. Measures to treat the patient may include but are not limited to: seeking to hospitalize the patient; seeking to initiate involuntary commitment proceedings; scheduling more frequent visits or contacts with the clinic; starting injectable medication, etc. Measures to warn potential victims may include notifying law enforcement and notifying “foreseeable” victims.
• When you decide to issue a warning, notify law enforcement before contacting potential victims. Document in the patient’s medical record your notification efforts and the individuals or groups notified.
• In Volk, the court held that it is a jury’s responsibility to determine who may be a foreseeable victim. In assessing the scope of foreseeable victims, consider people close to the patient, such as family members, work colleagues and others within the person’s social circle. Depending on your assessment, notification to a broader group could be required. In that case, coordination with law enforcement may be necessary. You must assess every case individually.
• For any action taken, document in the patient’s medical record the reasons the action is necessary to warn or protect foreseeable victims, and if applicable, to prevent or lessen a serious and imminent threat to a person or the public’s health or safety, as described above.

Consider these points in the clinical context, act in good faith and document in the patient’s medical record your thought process in sufficient detail to justify any course of action you decide to take (click here for a handy guidance document). Adequate documentation will be key to reducing your risks of professional liability in face of the uncertainty that the Volk decision has created in outpatient mental health treatment.

I know this issue is of great concern to us all. The WSMA will continue to follow developments closely, advocate aggressively and report out to you regularly. Stay tuned.