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Holmes: Does the Colorado Statute Bar Recovery?

Cross posted from Frederick Leatherman Law Blog.

I decided to follow-up with another article about Tarasoff because it is a wonderful teaching example regarding how the law changes in response to changes in society.

As I stated yesterday, the California Supreme Court created a new rule of law in Tarasoff to provide a legal remedy for the family of the young woman whose tragic death could have been prevented, if only the mental health professionals who were treating the man who stabbed her to death had warned her, her family, or the police that he told them he was going to kill her.

Prior to Tarasoff, mental health professionals were required to keep all communications with their patients confidential. The law recognized the importance of protecting the confidentiality of those communications by creating the therapist-patient privilege.

But what happens when the patient tells his therapist that he is going to kill a woman who rejected him and he identifies her by name? That was the question posed by Tarasoff and we know how the California Supreme Court answered that question.

Let us now take a look at how this decision affected mental health professionals.

Many of them reported that a substantial percentage of their patients commonly expressed anger and even rage during counseling sessions. They raged against their spouses, family members, teachers, bosses and all manner of persons in positions of power and authority over their lives. Statements like, “I dream about killing [insert object of frustration and rage here],” were typical. Most of the time these statements were not intended as threats to kill by the patient and not perceived as threats to kill by the therapist.

But not all threats were benign and every once in awhile a patient would attempt to kill or actually kill the object of his frustration and unhappiness. That happened in Tarasoff.

Prior to Terasoff, distinguishing between a patient’s threat to kill as a figure of speech versus the expression of actual intent to kill was important, but not a job requirement. That changed after Terasoff.

Therapists suddenly were concerned about their potential exposure to ruinous lawsuits, damage to their professional reputations and public humiliation, if they failed to report a threat that a patient later carried out. They realized that they were risking the loss of their careers every time they dismissed a threat as a figure of speech and declined to report it to the police. Many decided to report all threats, no matter how unlikely they believed that a threat would be carried out.

Although the CYA approach protected the therapist, it caused many problems for patients. Consider, for example, a patient’s frustrated statement to the therapist that the next time his boss insults him in front of others, he is going to kill him. If the therapist reports this statement to the police and to the boss, the boss likely will fire the patient, despite the patient’s claim that he never intended to carry out the threat.

Getting your patients fired from their jobs or divorced by their spouses as a consequence of your desire to eliminate your potential liability for failing to warn is an unacceptable, unprofessional and possibly unethical practice.

Therapists also lamented that the accuracy and reliability of predicting future violence was only marginally more accurate than flipping a coin and they complained that the Tarasoff Rule was forcing them to predict future violence accurately everytime they decided to risk not reporting a patient’s threat in order to protect the patient from suffering probable adverse consequences.

Law enforcement agencies also expressed frustration and concern that their ability to carry out their primary policing responsibilities was being compromised by having to investigate threats and warn the potential victims or their families about the threats.

Despite widespread sympathy and concern for the Tarasoff family and recognition that something needed to be done to prevent another tragic and preventable homicide, increasing numbers of mental health professionals in California, and other states whose supreme courts had adopted the Tarasoff Rule, began to question its wisdom and propose changes.

For example, the California Legislature passed a law immunizing mental heath professionals from civil suit for failing to warn or protect reasonably identifiable potential victims, so long as the mental health professional’s decision not to attempt to warn or protect was made in good faith. Other state legislatures soon passed similar laws.

The Colorado Legislature adopted a different approach to solving this vexing problem:

§ 13-21-117. Civil liability – mental health care providers – no duty

A physician, social worker, psychiatric nurse, psychologist, or other mental health professional and a mental health hospital, community mental health center or clinic, institution, or their staff shall not be liable for damages in any civil action for failure to warn or protect any person against a mental health patient’s violent behavior, and any such person shall not be held civilly liable for failure to predict such violent behavior, except where the patient has communicated to the mental health care provider a serious threat of imminent physical violence against a specific person or persons. When there is a duty to warn and protect under the circumstances specified above, the duty shall be discharged by the mental health care provider making reasonable and timely efforts to notify any person or persons specifically threatened, as well as notifying an appropriate law enforcement agency or by taking other appropriate action including, but not limited to, hospitalizing the patient. A physician, social worker, psychiatric nurse, psychologist, or other mental health professional and a mental health hospital, community mental health center or clinic, institution, or their staff shall not be liable for damages in any civil action for warning any person against or predicting a mental health patient’s violent behavior, and any such person shall not be subject to professional discipline for such warning or prediction. For the purposes of this section, “psychiatric nurse” means a registered professional nurse as defined in section 12-38-103(11), C.R.S., who by virtue of postgraduate education and additional nursing preparation has gained knowledge, judgment, and skill in psychiatric or mental health nursing. The provisions of this section shall not apply to the negligent release of a mental health patient from any mental health hospital or ward or to the negligent failure to initiate involuntary seventy-two-hour treatment and evaluation after a personal patient evaluation determining that the person appears to have a mental illness and, as a result of the mental illness, appears to be an imminent danger to others.

The Colorado rule focuses on (1) tightening the definition of “threat” to reduce the universe of statements that trigger a reporting obligation as well as (2) imposing a requirement that potential victims must have been specifically identified by the patient who makes the threat.

Just when you thought the problems were solved, however, Mr. Holmes said something disturbing that alarmed his psychiatrist, Dr. Lynne Fenton, and she notified the threat evaluation team about it, but they apparently did nothing.

We now have 12 people dead and 58 injured.

Now let’s take a look at the Colorado Rule and see how it affects the potential legal remedies of the families of the 12 homicide victims and the 58 shooting victims who survived Mr. Howell’s shooting rampage.

The Colorado Legislature appears to have created a legal “remedy” that may bar recovery because the 70 victims may not have been, “specifically identified” by Mr. Holmes and his threat, assuming he communicated a serious threat to Dr. Fenton, may not have satisfied the “imminent” requirement.

I feel obliged to point out that we do not even know if the subject matter of Mr. Holmes statement to Dr. Fenton constituted a serious threat and, assuming that it did, we do not know if it concerned a possible shooting in a movie theater.

Nevertheless, I think the Colorado Legislature needs to revisit the drawing board because this statute is so restrictive that it will necessarily preclude lawsuits on behalf of innocent people killed or injured by violent patients.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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