Abstract:
Abstract: Since its inception in Tarasoff v. Regents of the University of the California, the
duty to protect third parties imposed on mental health professionals (MHPs) has been the
subject of considerable scrutiny. Clinicians and legal scholars alike derided the original duty
to protect “anyone foreseeable” as unworkable—undermining the therapeutic relationship
and placing MHPs in the impossible position of having to predict their patients’ violent
future. Over time, case law and legislation narrowed the duty to something less problematic:
a “duty to warn” identifiable victims who face imminent threat of serious harm.
However, Volk v. DeMeerleer, reset the duty for Washington MHPs to its original
expansiveness, and arguably broadened the basis for imposing the duty. The decision
effectively marries the duty to the mere presence of a therapeutic relationship, and divorces it
from a patient’s dangerousness—the objective criteria this Article argues is an implicit and
necessary component of the duty. Dangerousness is not only a reasonable basis upon which
to trigger the duty to protect, it also embodies the crucial development in mental health law
that a mentally ill person’s rights cannot be curtailed absent due process. This Article argues
that Volk effectively denies the need for objective criteria to trigger the duty and, as a result,
is legally unsupportable as well as practically unworkable. Worst of all, Volk undermines the
legalist approach to mental health laws which arose in response to the repugnant presumption
that a mentally ill person necessarily threatens the public’s safety. This Article first traces the
rise of rights-based mental health laws and the role of dangerousness, as well as the origin of
the duty to protect. Second, it reviews trends in the duty to protect case law and legislation to
identify the implicit role that dangerousness played in limiting Tarasoff. It further reflects on
how dangerousness, although flawed, represents the best option for mediating the tension
between honoring the rights of mentally ill persons and protecting society. Finally, this
Article sets out the facts and rulings of Volk, concluding with a call for legislative reform.
Absent a course correction, the decision invites a return to the false notion that mentally ill
persons are inherently dangerous.
