By James D. Kelso, J.D., LL.M. Candidate
In recent months, health care providers in Texas have been struggling to sort out what, if any, duties they owe to warn third parties when threats of violence have been made by their patients toward specific individuals. This summer, the Texas Supreme Court decided Thapar v. Zezulka, 994 S.W.2d 635 (Tex. 1999), and held that a psychiatrist does not have a duty to warn the subject of a specific or general threat of violence made by a mental health patient. After this holding was published, many members of the medical community were shocked to discover that there is no duty to warn third parties in Texas. This misconception has developed as a result of the landmark decision in Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976) in which the California Supreme Court held that psychotherapists could be held liable for failing to exercise reasonable care to protect a third party when the therapists know or should know that their patient presents a serious danger of violence to another. Although the Tarasoff decision has been adopted by many jurisdictions across the nation, the decision has never been formally adopted in Texas because the Texas Supreme Court is unwilling to create a new common law cause of action based in negligence.
In Thapar, the Texas Supreme Court based its holding on a statute enacted by the Texas Legislature in 1979 which grants increased protection for patient confidentiality. Chapter 611 of the Texas Health and Safety Code creates special provisions for the disclosure of mental health records of those individuals seeking mental health treatment. Specifically, Section 611.004 authorizes the disclosure of confidential information in all circumstances other than in a judicial or administrative proceeding. However, this statute grants the permissive disclosure of mental health records only to specifically designated entities. In Thapar, the Texas Supreme Court holds that this statute does not require mandatory disclosure to third parties and was intended by the Texas Legislature to protect the release of confidential and damaging mental health diagnosis, evaluation and treatments from disclosure. It also holds that neither the Texas Supreme Court nor the Texas Legislature has ever adopted a common law cause of action that would allow for the recovery under a Tarasoff duty to warn analysis.
This is not the only situation in which this line of reasoning holds true in Texas. The Texas Supreme Court held in Paesel v. Johnson, 967 S.W.2d 391 (Tex. 1998) that a physician owes no duty to third parties to warn a patient with epilepsy not to drive or to report the patientís condition to state authorities that govern the issuance of driverís licenses. In this case, the Texas Supreme Court held that under the statute at issue physicians were permitted to report to state agencies, but it held that physicians did not owe a duty to report individuals with epilepsy to state licensing agencies.
In Texas, if a health care provider wishes to warn of a threat of violence directed by a patient towards a third party, the provider may choose to either notify or not notify local law enforcement pursuant to Section 611.004 (a)(2). This is the permissive element of the statute. The health care provider owes no duty to inform local law enforcement if a threat of violence has been made.
If the health care provider notifies the threatened third party directly, it appears that liability will attach as a result of the health care providers breach of patient confidentiality. The Texas Supreme Court did not give any guidance as to whether a health care provider would be protected if the provider disclosed confidential information to local law enforcement and local law enforcement disseminated the threat to the third parties pursuant to Section 611.004. Additionally, this type of disclosure could lead to allegations of defamation or invasion of privacy issues. It has also been suggested that disclosure could lead to a chilling effect on therapy. Under Section 611.004, an assumption exists that the health care provider would be protected when notifying local law enforcement but liability for reporting on a permissive basis is unknown. Normally, statutes that require reporting, like reporting required under the child abuse statutes, provide some type of good faith immunity to those who report. No such good faith immunity exists under this statute.
Under existing Texas law, if health care providers report confidential information directly to a third party who is the subject of a specific threat, the provider does so in violation of state law. If health care providers report confidential information to local law enforcement, the provider does so at his or her own peril because there is no protection for good faith reporting under the present statute. However, the health care provider does have two tools to use in combatting the potential threat of violence. If the patient poses a substantial risk of serious harm to himself or others, the health care provider may contact the county mental health deputies or local law enforcement to have the patient admitted to a mental health facility through Emergency Detention, which is permitted by Section 573.001 of the Texas Health and Safety Code, or the health care provider may initiate an Emergency Admission and Detention under Section 573.022 of the Texas Health and Safety Code.