As a result of amicus briefs filed in the case, the proceedings were revisited two years later when the California Supreme Court conceptualized it as a duty to protect, rather than a duty to warn.

     The importance of this distinction is that the second case allowed for clinical discretion, that is, the clinician involved could use their best professional judgment in deciding what course of action to take when a patient of theirs threatened an identifiable third party.

    While the court did not specify what the steps might be, clinicians have spoken about such interventions as increasing the number of therapy sessions, referring the patient for medication, providing the patient with a cellphone number or a home phone number, seeking either voluntary or involuntary commitment and, as a last resort, notifying the potential victim or the police.

    Of some interest is that the idea of warning a potential victim was accepted as an effective intervention, with few questioning it until subsequent research became available. Research in the latter part of the 1970s suggested that the protective value of notifying a potential victim of violence was minimal and, in some cases, even increased the potential for violent behavior. Nevertheless, the concept survived many years.

    Several subsequent cases discussed whether fantasies of violence, in the absence of actual threats, could trigger such a duty and how specific the threat had to be. Several cases in the early 1980s seemed to stretch the concept beyond its original intent. In one case, a therapist was held liable for failing to warn an intended victim, as well as for failing to warn and/or protect anyone who might, “foreseeably be in close proximity to the intended victim.” In a similar case a therapist was found liable because, even though no threat had been made to the intended victim, he or she fit the “psychological profile” of previous victims. The only positive statement to be made about these two cases is that they were not used as precedent in later cases.

    Perhaps the case that most recognized limits of clinicians was the 1983 federal case of Brady vs. Hopper, which dealt with the assassination attempt on President Ronald Reagan by John Hinckley. One of the shooting victims, Press Secretary James Brady, filed a lawsuit against John Hopper, Psy.D., who had been Hinckley’s therapist. Brady argued Hopper, “knew or should have known,” of Hinckley’s violent tendencies.

    The case was granted a summary judgment at trial and, following Brady’s appeal, the

Tenth Circuit Court of Appeals ruled that even if Hopper had been aware of Hinckley’s

obsession with Jodie Foster, his identification with the main character in the movie

“Taxi Driver” and that he took target practice at pictures of President Reagan, all of

these factors taken together, would not result in a reasonable perception of danger.

In short, there would have to be a communication from Hinckley to Hopper that he

intended to kill President Reagan before the duty would apply.

    A number of later cases seemed to follow this more liberal trend of giving deference to clinical judgment, including the 1986 case of White vs. The United States, in which a clinician was found not negligent because she had done a comprehensive review of the patient’s background and concluded that he did not pose an actual threat.         The patient did, in fact, act out but the finding of not negligent was based on the therapist following an accepted standard of care in her review of the case. Interestingly, in a companion case, the hospital in which the patient was confined was found negligent for failure to adhere to its own policies.

    Unfortunately, this liberal trend seems to be changing. Many laws seem to be expanding the liability of mental health professionals and not paying as much attention to clinical judgment. In some states, the case law is inconsistent with the statute. The statute is a very carefully worded statement that incorporates the concept of clinical judgment, while the case law speaks about a therapist’s obligation toward, “anyone who might reasonably be endangered.”

    In a similar manner, a number of cases reflect a total abandonment of the concept of clinical discretion and professional judgment. In the summer of 2019, a Florida statute that previously provided for a great deal of professional discretion was changed to make clinicians responsible for harm their patients had talked about and narrows the course of action to notifying an intended victim, but not law enforcement. The change flies in the face of the research noted above regarding the lack of effectiveness of warning potential victims. Whether the statute was motivated by a lack of knowledge of the research or politics cannot be determined at this time.

    Several other states have followed this regressive trend. The only way clinicians can be effective, at this point, is to provide testimony and amicus briefs in cases where these laws are under consideration. Clinicians need to demonstrate that notifying a third party is an ineffective intervention and that more effective ways of handling the situation may lie in better diagnostic and treatment approaches.