dangerous patient exception in michigan who has to report

Although a 1996 U.S. Supreme Court decision affirmed that therapists cannot be compelled to testify in federal proceedings about patients' disclosures, a footnote could be interpreted as creating a "dangerous patient exception" when there is a serious threat of harm.

Full Answer

Should there be a mandatory reporting law for violent patients?

Mandatory reporting laws, say some professionals, may discourage people from seeking professional help or fully disclosing their intentions; or providers may be reluctant to treat potentially violent patients because they fear liability for failure to properly fulfill the duty to warn.

Can a therapist report a patient's admissions to the police?

The therapist may have to report the admission to the authorities, and the patient's incriminating statements may be admissible in court. ( Hayes v. State, 667 N.E.2d 222 (Ind. Ct. App. 1996).)

What are some exceptions to the therapist-patient relationship?

An exception to the therapist-patient relationship in some states involves the patient seeking or obtaining the therapist's services in order to commit a crime or form of fraud.

Is there an exception to the therapist-patient privilege?

Most states have an exception to the therapist-patient privilege for dangerous patients, often referred to as the Tarasoff duty. ( Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425 (1976).)

Who should be notified under the Tarasoff duty to warn statute?

The trial court granted summary judgment, because the California Tarasoff statute requires that, “the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims” (emphasis added, § 43.92).

Do therapists have to report crimes?

In legal cases, unless there is a warrant, client consent is required to release information. Professionals stress that, prior to getting consent, they explain to clients the implications of sharing notes – contents may be read in open court and shared with the other side – and whether they can refuse or redact parts.

Is Michigan a duty to warn state?

Michigan limits duty to warn to communications from a patient directly. Although Michigan initially adopted a Tarasoff duty to warn through case law in 1983,10 the Michigan State Legislature later adopted a Tarasoff duty to warn statute in 1989.

What is the Tarasoff requirement?

In 1985, the California legislature codified the Tarasoff rule: California law now provides that a psychotherapist has a duty to protect or warn a third party only if the therapist actually believed or predicted that the patient posed a serious risk of inflicting serious bodily injury upon a reasonably identifiable ...

What can your therapist report?

Therapists are required by law to disclose information to protect a client or a specific individual identified by the client from “serious and foreseeable harm.” That can include specific threats, disclosure of child abuse where a child is still in danger, or concerns about elder abuse.

What should you not tell a therapist?

With that said, we're outlining some common phrases that therapists tend to hear from their clients and why they might hinder your progress.“I feel like I'm talking too much.” ... “I'm the worst. ... “I'm sorry for my emotions.” ... “I always just talk about myself.” ... “I can't believe I told you that!” ... “Therapy won't work for me.”

What is the criteria for duty to warn?

The duty to warn arises when a patient has communicated an explicit threat of imminent serious physical harm or death to a clearly identified or identifiable victim or victims, and the patient has the apparent intent and ability to carry out such a threat.

What is the difference between duty to warn and duty protect?

The duty to warn refers to a counselor's obligation to warn identifiable victims. The duty to protect is a counselor's duty to reveal confidential client information in the event that the counselor has reason to believe that a third party may be harmed.

What is the duty to protect rule?

Mandatory duty to protect laws typically apply where there is an imminent and/or rather certain threat of harm. They often specify that the harm must be serious physical harm or death.

Does Tarasoff apply in all states?

Although some provider types (e.g., psychologists and psychiatrists) are covered by Tarasoff-related duties in most states (Table 2), other provider types (e.g., nonpsychiatrist physicians) are covered in only a subset of states.

Which states are Tarasoff States?

The Duty to Protect: Four Decades After TarasoffImplementationStatePermissive dutyAlaska, Arizona, Arkansas, Connecticut, District of Columbia, Florida, Hawaii, Kansas, Mississippi, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Texas, West Virginia, Wyoming3 more rows•Apr 1, 2018

When can I file Tarasoff?

enforcement must be notified within 24 hours of the time the clinician learns of the threat. However, the prudent and ethical decision is to not wait 24 hours, but to notify law enforcement as soon as possible.

Physician Testimony on a Patient's Possession of Cyanide Admitted Erroneously Based on a Dangerous-Patient Exception to Privilege

In United States v. Ghane, 673 F.3d 771 (8th Cir. 2012), the United States Court of Appeals for the Eighth Circuit considered whether the U.S. District Court for the Western District of Missouri erred in denying the defense's motion to dismiss and its motion in limine.

Footnotes

Disclosures of financial or other potential conflicts of interest: None.

In this issue

Patient Privilege and Dangerousness: Should Duty to Warn Affect Confidentiality?

What is the duty of confidentiality in mental health?

Under ethical standards tracing back to the Roman Hippocratic Oath, doctors and mental health professionals usually must maintain the confidentiality of information disclosed to them by patients in the course of the doctor-patient relationship. With some exceptions codified in state and federal law, health professionals can be legally liable for breaching confidentiality. One exception springs from an effort to protect potential victims from a patient’s violent behavior. California courts imposed a legal duty on psychotherapists to warn third parties of patients’ threats to their safety in 1976 in Tarasoff v. The Regents of the University of California. This case triggered passage of “duty to warn” or “duty to protect” laws in almost every state as summarized in the map and, in more detail, in the chart below.

What is client privilege in behavioral health?

Behavioral health professional - client privilege does not extend when the professional has a duty to (1) inform victims and appropriate authorities that a client's condition indicates a clear and imminent danger to the client or others; or (2) to report information required by law.

What is a psychologist's privilege?

Places communications between client and a licensed psychologist on the same basis as those of attorney client privilege. Privilege does not extend when psychologist has a duty to report as required by law. Applies to support staff as well.

Why are mental health professionals reluctant to treat potentially violent patients?

Mandatory reporting laws, say some professionals, may discourage people from seeking professional help or fully disclosing their intentions; or providers may be reluctant to treat potentially violent patients because they fear liability for failure to properly fulfill the duty to warn.

Is there a monetary liability for a marriage and family therapist?

There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a licensed marriage and family therapist in failing to predict and warn of and protect from a patient's violent behavior except where the patient has communicated a serious threat of physical violence against a reasonably identifiable victim or victims. The duty shall be discharged by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency. Immunity is provided for from suit relating to disclosure of confidential information.

What is the purpose of the state search box?

The box allows you to conduct a full text search or type the state name.

When did California impose a legal duty on psychotherapists?

California courts imposed a legal duty on psychotherapists to warn third parties of patients’ threats to their safety in 1976 in Tarasoff v. The Regents of the University of California.

What is the HIPAA Privacy Rule?

The HIPAA Privacy Rule permits a covered entity to disclose PHI, including psychotherapy notes, when the covered entity has a good faith belief that the disclosure: (1) is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others and (2) is to a person (s) reasonably able to prevent or lessen the threat. This may include, depending on the circumstances, disclosure to law enforcement, family members, the target of the threat, or others who the covered entity has a good faith belief can mitigate the threat. The disclosure also must be consistent with applicable law and standards of ethical conduct. See 45 CFR § 164.512 (j) (1) (i). For example, consistent with other law and ethical standards, a mental health provider whose teenage patient has made a credible threat to inflict serious and imminent bodily harm on one or more fellow students may alert law enforcement, a parent or other family member, school administrators or campus police, or others the provider believes may be able to prevent or lessen the chance of harm. In such cases, the covered entity is presumed to have acted in good faith where its belief is based upon the covered entity’s actual knowledge (i.e., based on the covered entity’s own interaction with the patient) or in reliance on a credible representation by a person with apparent knowledge or authority (i.e., based on a credible report from a family member or other person). See 45 CFR § 164.512 (j) (4).

Can a minor be disclosed under HIPAA?

For threats or concerns that do not rise to the level of “serious and imminent,” other HIPAA Privacy Rule provisions may apply to permit the disclosure of PHI. For example, covered entities generally may disclose PHI about a minor child to the minor’s personal representative (e.g., a parent or legal guardian), consistent with state or other laws.

What is the Tarasoff rule?

In the first ruling of its kind, the California Supreme Court held that a psychotherapist who determines or should determine that a patient poses a serious danger to another must use reasonable care to protect the potential victim. ( Tarasoff v. Regents of Univ. of California, 17 Cal. 3d 425 (1976).) Several other states adopted the Tarasoff rule, and the California legislature wrote it into law in 1985.

What is Martindale Nolo?

Nolo is a part of the Martindale Nolo network, which has been matching clients with attorneys for 100+ years.

What is privilege material?

Privileged Material. When the therapist-patient privilege does apply, it covers patients' statements, and often therapists' diagnoses and notes. It includes recitations of fact, and expressions of emotion and opinion—just about anything the patient says.

What is a privilege relationship?

Privileged Relationship. The therapist-patient privilege covers statements by patients to their treatment providers during therapy. It generally applies to statements in the context of diagnosis and treatment.

What are the privileges of a psychotherapist?

The law of your jurisdiction (either the state or federal government) will define the exact professionals who are bound by the psychotherapist-patient privilege. The privilege often applies to confidential communications in the course of psychotherapy with licensed: 1 psychiatrists 2 psychologists 3 social workers, and 4 counselors.

What is an exception to the therapist-patient relationship?

An exception to the therapist-patient relationship in some states involves the patient seeking or obtaining the therapist's services in order to commit a crime or form of fraud. So, for instance, deceitful statements by a patient to a psychiatrist intended to persuade the latter to prescribe inappropriate controlled substances likely wouldn't be privileged. That isn't to say, however, that all statements by that patient over the span of therapy would be admissible in court—probably only those related to the crime. ( Stidham v. Clark, 74 S.W.3d 719 (Ky. 2002).)

What is the psychotherapist-patient privilege?

The law of your jurisdiction (either the state or federal government) will define the exact professionals who are bound by the psychotherapist-patient privilege. The privilege often applies to confidential communications in the course of psychotherapy with licensed: