By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

 
Dear Legal Mailbag:

I am wondering if, when a private psychiatrist (one hired by a parent directly) sees a student and learns something pertinent or disturbing that suggests that the student may harm others at school, is the psychiatrist required to provide any information to the school directly or is the psychiatrist protected (and bound) by the psychiatrist’s obligation to maintain the privacy of patient information?

If the psychiatrist cannot disclose information in such a situation, would the parent have to provide this information to school officials? Could parents be held liable if they do not disclose such information?

Signed,
Intellectually Curious
 

Dear Curious:

As is so often the case with legal issues, the answer here is “it depends.” To be sure, psychiatric information is confidential, and psychiatrists have an ethical and legal duty to maintain the confidentiality of such information. But as with most rules, there are exceptions. One of the exceptions to the obligation to maintain confidentiality of psychiatric records is when a psychiatrist “determines that there is substantial risk of imminent physical injury by the patient to himself or others.”

Specifically, Conn. Gen. Stat. § 52-146e(1) provides that information a psychiatrist receives from a patient must be kept confidential except in the rare circumstances described in the statutes. One of these circumstances is set forth in Conn. Gen. Stat. § 152-145f(2), which provides in relevant part:

(2) Communications or records may be disclosed when the psychiatric mental health provider determines that there is substantial risk of imminent physical injury by the patient to himself or others or when a psychiatric mental health provider, in the course of diagnosis or treatment of the patient, finds it necessary to disclose the communications or records for the purpose of placing the patient in a mental health facility, by certification, commitment or otherwise . . . . (emphasis added)

Under this law, a psychiatrist has the right but not the obligation to disclose such information. However, a psychiatrist can be civilly liable for not exercising the right to disclose such information “where harm to identifiable victims is a foreseeable consequence of his silence.” Garamella v. New York Medical College, 23 F. Supp. 2d 167, 175 (D. Conn. 1998). This potential for liability for violating the “duty to warn” was first articulated in a seminal decision by the California Supreme Court, Tarasoff v. Regents, 17 Cal. 3d 425 (Calif. 1976). There, the court held that mental health professionals have a duty to warn potential victims when they become aware of a serious danger posed by their patients. As a consequence of this duty, mental health professionals can be held liable when they do not do so.

The Office of Legislative Research has published three Research Reports on the “duty to warn.” The first, Research Report 98-R-0682 (April 30, 1998) appeared in 1998. Research Report 2010-R-0024, “Duty of Mental Health Professionals to Warn of Potentially Violent Conduct by Patients” (January 25, 2010) (written by a brilliant young legislative fellow who is now a partner at a prominent Connecticut law firm) summarizes subsequent case law developments and explains that, after an early case, Fraser v. United States, 236 Conn. 625 (1996), first addressed the issue, the Connecticut courts now recognize the “duty to warn” (not only for psychiatrists but also other mental health professionals). There, we read:

Later Connecticut cases have interpreted Fraser as acknowledging a duty to warn under particular factual circumstances. In Jacoby v. Brinkerhoff, (250 Conn. 86, 96 (1999)), the Connecticut Supreme Court held that under Fraser a psychotherapist has the duty to warn of possible violence by a patient only if there is “an imminent risk of serious personal injury to identifiable victims.” The court stressed that the threat must be of physical violence, not damage to property or to the plaintiff’s marriage. In at least two instances, Connecticut Superior Courts have allowed cases to go forward so juries could decide whether the factual standards outlined in Fraser had been met (E.g. Roesler v. Reich, Superior Court, Judicial District of New London, at Norwich, No. 128514, May 5, 2006, 2006 Conn. Super. LEXIS 1316; Schlegel v. New Milford Hosp., Superior Court, Judicial District of Waterbury, at Waterbury, No. X02CV 960071253S, May 9, 2000, 2000 Conn. Super. LEXIS 1196).

This 2010 Legislative Report was then further updated in 2013, Legislative Report 2013-R-0089, “Duty of Mental Health Professionals to Warn of Potentially Violent Conduct by Patients” (January 29, 2013), which Report quotes the court in the Schlegel case to provide further guidance as to when the “duty to warn” exists:

The upshot of Fraser is that in Connecticut, a psychotherapist does assume a duty to control his psychiatric outpatient to prevent injury to third person if he knows or has reason to know that his patient will cause harm to that particular person. To establish that a psychotherapist knew or had reason that his patient would harm a particular patient, the person must prove that he was either a specifically identifiable victim of the patient, or at least a member of a class of the identifiable victims or within the zone of risk to an identifiable victim of the patient.

From these cases, we see that the psychiatrist in the case you describe could have a “duty to warn.” However, courts will likely find a violation of that duty only when a threat is direct, specifically related to an identified person, and highly likely to result in harm.

The duty of parents in such unfortunate situations is not governed by statute, but rather simply by the established principles of negligence law. Liability for negligence may be found when a person (1) has a duty of care, (2) breaches that duty, (3) the breach causes an injury, (4) which injury is foreseeable. Parents are not mental health professionals, and they would not have a duty of care, as a mental health professional may have, to predict the potential harm that a psychiatric disorder could cause. However, Legal Mailbag can envision a situation when specific facts would put even untrained persons (such as parents) on notice that there is a dangerous situation, and a failure to act in such a case that results in injury could well result in liability. Legal Mailbag joins you in hoping that such a circumstance never arises.