Assessing Violence in Patients: Legal Implications

When a patient threatens violence to another person, the responsible mental health care professional faces a decision with potential clinical, ethical and legal consequences. The clinician must first decide whether there is a realistic risk of violence or whether the patient is expressing fantasies or just blowing off steam.

Clinical assessments of dangerousness should be regarded as assessments of risk, rather than as predictions of violence. As we are not able to predict with certainty or near certainty whether or not a person will be violent, assessment should seek to describe the individual with a full clinical and behavioral description. Whenever possible, the individual should be assessed in an ongoing manner, rather than just once. The probability of future dangerous behavior can be related to the similarity of the person's current situation to situations in which they were violent in the past.

Prior history of violent behavior is the single best predictor of future violence. It is important for clinicians to fully characterize prior acts of violence so that they can examine the patient's history for patterns of violent behavior and current situational similarities. Who did what to whom? When, where and under what circumstance? Who was the victim and what was their relationship to the patient? Were there perceived precipitants? Was there a motive or provocation? Did the violence appear to be impulsive or spontaneous, or was it premeditated?

Other historical details may provide information that would increase the patient's risk category. Was the subject under the influence of drugs or alcohol? Were weapons used? Was the injury serious? What was the most violent thing the individual has done? If there is no history of actual violence, what was the closest they ever came to being violent?

Demographic variables such as younger age and lower socioeconomic status may increase risk. Race is not a significant factor when socioeconomic status and other demographic variables are controlled. Males in the general population do commit more violent offenses. However, among male and female psychiatric patients, the rates are similar. Mental status can influence the likelihood of violence. The strongest correlation has been the presence of active psychotic symptoms, especially command auditory hallucinations of a familiar voice or of influence and control. One study, however, found no relationship between delusions and violence in the absence of substance abuse one year after discharge from hospitalization (Appelbaum et al., 2000).

Is the individual using substances? Is the person angry with anyone for either realistic or delusional reasons? Do they say that someone has disrespected them? Do they make frequent and open threats or describe a concrete plan? If the answers to these questions are affirmative, the patient's risk category is higher.

An assessment of clinical factors, including Axis I mental disorder, character pathology and possible medical conditions, is also important. There is a modest relationship between violence and mental disorder; the risk for violence increases with a greater number of comorbid diagnoses. Active psychotic symptoms and comorbid substance abuse or dependence present much more of a risk than any diagnosable mental disorder alone.

Patients may be violent based on character as well as psychosis, and it is wise to identify traits such as sociopathy, narcissism, risk-taking, low frustration tolerance, inability to tolerate criticism and difficulty managing temper. In specifically considering potential for impulsive violence, it is important for clinicians to evaluate general impulsiveness. Is this a person who makes quick decisions and acts on them? Does heavy drinking or other behavior increase impulsiveness?

Risk of violence depends on the person and their situation. Risk for violence in one situation may differ from risk in another. Stress, whether based on family, peer group or employment stressors, can increase risk.

After a careful assessment of potential for violence, the clinician can make an informed estimate on whether or not a threat exists. If violence is unlikely, then the legal and ethical duties are simple: Maintain the patient's confidentiality and continue the evaluation or treatment as clinically indicated. New legal duties may come into play when the clinician concludes that potential violence is an issue. Potential conflict arises between the duty to protect and the duty to maintain confidentiality. The duty to protect may involve warning a third party or initiating involuntary hospitalization of the patient, both of which breach confidentiality.

The fundamental principle in this situation is to treat the potential violence as a clinical issue. Once the clinician has decided that violence is a real risk, then they should discuss this assessment with the patient and treat the risk of violence as a serious problem for the two of them to work through together. In our experience, this approach usually leads to an agreement between the clinician and the patient on how to proceed--whether to warn the potential victim, modify the current treatment or hospitalize the patient.

Note that when agreement is reached, the ethical dilemma vanishes. Confidentiality is only breached when the clinician acts without the patient's consent. When the patient consents to share information either with significant others or clinicians, there is no breach of confidentiality. If such an agreement cannot be worked out, the clinician has a clear obligation to break confidentiality. The imminent threat of violence to a specific individual trumps the issue of protecting confidentiality, and the courts have generally supported this position.

Since the Tarasoff (1976) decision, clinicians have reasonably been concerned that when patients are violent, legal action against the therapist may follow. These concerns can at times frighten clinicians to the point that their clinical judgment is affected. It is necessary to keep careful records, including ongoing notes outlining the clinician's thinking (pro and con) for each of their decisions. Equally important is an emphasis for appropriate consultation in questionable cases.

We believe that clinicians can best deal with these difficult situations when they know what has actually happened in prior cases that led to suits. In our clinical experience, impulsive violence poses the greatest dilemma for clinicians. Because impulsive patients are, by definition, unpredictable, they naturally pose a greater risk of harm when they are delusional or angry. In what follows, we review the cases in which impulsive violence by patients has led to Tarasoff-like suits against the clinician.

Personality Disorder

Case 1a. White v United States (1986) involved a man who killed a police officer. He was found not guilty by reason of insanity and then committed. After some years in the hospital, he had progressed to off-grounds privileges, and he had met and married another patient who was subsequently discharged. While he was visiting her, she showed him pictures of herself and another man, both of them in bathing suits. The husband impulsively grabbed a pair of scissors and superficially stabbed his wife 55 times in the back. The wife sued the patient's therapist alleging a failure of duty to protect. The court found for the therapist, noting, "Dr. Brown gave a detailed and persuasive explanation of why the single fantasy did not represent a danger [to the wife]."

In this case, there was a prior threat to a clearly named victim and a credible motive. The court found the violence to be foreseeable, but ruled that the clinician's clinical judgment had been made with sufficient care so that she was not held responsible for the harm to the patient's wife. This case illustrates that careful clinical assessment of potential for future violence protects the clinician from a finding of malpractice, even when future violence occurs.

Case 1b. Nine weeks after being discharged from the state hospital, a mentally ill man became annoyed at some neighbors and asked them to keep the noise down. When they failed to respond to his satisfaction, he fired a shotgun, killing one and wounding the other. The survivor sued the hospital and the psychiatrist who had discharged the shooter (Sharpe v South Carolina, 1987). The Court found for the defense, holding that, as a matter of law, there was no duty to the victims, because they were not identifiable.

Case 1c. Moye v United States (1990) concerned a veteran with a history of alcohol and marijuana use who was in outpatient treatment for paranoia for several years. After refusing to comply with treatment, the patient was taken home by his parents. Subsequently, he impulsively shot and killed both of them. The administrator of the parents' estate filed a civil action claiming the defendants were negligent in failing to hospitalize the patient. The court held that there was no affirmative duty to seek involuntary commitment of any person or to control a voluntary patient. Therefore, as a matter of law, the U.S. Department of Veterans' Affairs (VA) and the physicians could not be liable. The United States' motion for summary judgment was granted.

Schizophrenia

Case 2a. Leedy v Hartnett (1981) details a veteran with schizophrenia and a history of impulsive violence and chronic alcoholism who assaulted friends with whom he was staying after an evening of drinking with them. The friends sued, claiming the VA had breached the duty to protect them. The court said the violence was not foreseeable because the patient had never previously assaulted drinking friends. A history of violence was not enough to establish foreseeability, and the court ordered summary judgment for the defendants.

Case 2b. Bardoni v Kim (1986) concerned a man in outpatient treatment for chronic paranoid schizophrenia who developed the delusions that his wife was poisoning him and dating his brother; that the brother had given him a hernia; and that his blood was being poisoned either by his former employer or by air pollution. He had no history of violence. He told his wife he was thinking of killing his brother, but she did not take him seriously and never told the treating psychiatrist. The patient later killed his mother and brother and assaulted his wife.

The survivors sued the psychiatrist, alleging a failure in the duty to warn. The court issued summary judgment for the defendant as it related to the representatives of the patient's mother, stating that the violence was not foreseeable because the patient had never threatened his mother or wife. In regard to the brother, the court held that the psychiatrist should have known that the patient posed a serious threat sufficient to defeat a summary judgment motion.

Case 2c. A psychiatrist evaluated a man with chronic schizophrenia, spending all of five minutes with the patient and failing to review past records that showed a history of substance abuse, violence and noncompliance with medication (Hamman v County of Maricopa, 1989). Beyond that, the facts are in dispute. The parents alleged that they told the doctor that their son carried around pictures of decapitated animals; that they feared their son was a lethal threat; and that they never turned their backs on him. They further alleged that they begged the doctor to hospitalize their son, but that the doctor told them that their son was harmless.

In any case, the doctor sent the son home with a prescription that the son refused to take. Two days later, without provocation, he severely beat his stepfather, causing brain damage and precipitating a myocardial infarction. The parents sued, alleging breach of the duty to protect. On appeal to Arizona's Supreme Court, the court held that there was a duty to protect in this case and that the plaintiffs were foreseeable victims. The court sent the case back to the lower court for trial.

This case is unusual in that the court found a duty and potential liability. In other duty-to-protect cases, e.g., Jablonski v United States of America (1983), courts have found liability when defendants failed to review records. In addition, the facts in Hamman are consistent with a psychiatric evaluation that was below the standard of care (For an additional case, visit <www.psychiatrictimes.com/violence.html>--Ed.).

Affective Disorders

Case 3a. A woman who had suffered from major depression shot and killed her husband while he slept. She had previously taken out a restraining order, fearing her husband would harm her and their children. In the past, she had verbally threatened other relatives, as well as her husband.

The decedent's estate administrator sued the wife's psychiatrist in Eckhardt v Kirts (1989), alleging failure of duty to protect. The court granted summary judgment for the defendant, holding that under Illinois law, the duty to warn requires a specific threat to a specific victim. Nonspecific threats against the victim and other family members were not sufficient to trigger the legal duty.

Case 3b. Sellers v United States (1989) involved a veteran with bipolar disorder who--during one hospitalization--threatened a student nurse with death, was generally argumentative and had been in one minor altercation. Two months after discharge, he visited his girlfriend. Her former boyfriend was present but, according to a witness, was not provocative in any way. The veteran beat the former boyfriend with a baseball bat. The court held that the victim was not identifiable and that the defendants had no duty to protect the public at large. The court found for the defendants.

Organic Brain Syndromes

Case 4a. Webb v Jarvis et al. (1991) detailed a primary care physician who prescribed anabolic steroids to a man who then threatened his wife with a knife and a gun. She fled but later returned home with a deputy sheriff. The patient shot the deputy and then drove to the hospital where he shot and killed a nurse. The plaintiffs sued Orville Lynn Webb, M.D., alleging he overprescribed medication, causing a toxic psychosis and the resulting violence. The court issued summary judgment for Webb, holding that: a) overprescribing did not create a risk the patient would shoot someone; and b) the victims were not identified or otherwise foreseeable.

Case 4b. Boulanger v Pol (1995) was brought after a young man with a posttraumatic organic brain syndrome shot his uncle, who the patient believed was Satan. The young man had been previously hospitalized and had a history of assaults on his uncle and his father and attempts of self-harm. After one discharge from the hospital, he lived peacefully in a community residence and never referred to his uncle as Satan. While visiting his parents when his uncle happened to be present, the patient took a shotgun that was in the home and shot the uncle. The uncle sued, claiming negligent release and failure to warn. The court said the release of a voluntary patient did not trigger a duty to protect and that since the uncle knew the nephew thought he was Satan, there was no duty to warn. The court found for the defense.

Concluding Thoughts

These cases illustrate that courts are reluctant to hold physicians and institutions liable for impulsive violence that appears not to be foreseeable. When physicians have practiced reasonably under applicable state law, they are not found to be negligent when a bad outcome occurs.

Thus, the clinical, legal and ethical mandates prove to be identical: to carefully exercise one's best clinical judgment. When the clinician does so, no negative legal consequences are likely to follow, and the clinician is fulfilling their ethical duty.

References:

References

1.

Appelbaum PS, Robbins PC, Monahan J (2000), Violence and delusions: data from the MacArthur Violence Risk Assessment Study. Am J Psychiatry 157(4):5665-72.

2.

Bardoni v Kim, 151 Mich. App. 169, 390 NW.2d 218 (Mich. 1986).

3.

Boulanger v Pol, 258 Kan. 289, 295, 900 P.2d 823 (1995).

4.

Eckhardt v Kirts, 179 Ill. App. 3d 863, 534 N.E.2d 1339, 1344, 128 Ill. Dec. 734 (Ill. 2d Dist. 1989).

5.

Hamman v County of Maricopa, 775 P.2d 1122 (Ariz. 1989).

6.

Jablonski v United States, 712 F. 2d 391 (9th Cir. 1983).

7.

Leedy v Hartnett, 510 F. Supp. 1125 (MD Pa. 1981).

8.

Moye v United States, 735 F. Supp. 179 (E.D.N.C. 1990).

9.

Sellers v United States, 870 F.2d 1098, 1102 (6th Cir. 1989).

10.

Sharpe v South Carolina, 354 S.E.2d 778 (S.C. App. Ct. 1987).

11.

Tarasoff v Regents, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976).

12.

Webb v Jarvis, 575 NE.2d 992, 994 (Ind. 1991).

13.

White v United States, 780 F.2d 97 (DC Cir 1986).