This is from Laura Groshong, the lobbyist of the Washington State Coalition of Mental Health Professionals and Consumers. I'm appalled by this decision and that we are now liable for every client we have ever seen!

Changes to Practice of Mental Health Clinicians Based on Volk Decision

April, 2017

Laura Groshong, LICSW, Mental Health Advocate

The Washington State Supreme Court recently decided the case of Volk v. DeMeerleer (No. 91387-1) on December 22, 2016. The 2017 Legislature declined to undo the decision through legislation this session.  The defendant in the case was a psychiatrist who had seen a very disturbed patient off and on over several years in Spokane who had not mentioned intent to commit violent acts. The former patient then murdered two people three months after leaving treatment. The Supreme Court held as follows:

“We hold that Ashby (the psychiatrist) and DeMeerleer (the patient) shared a special relationship, and that special relationship required Ashby to act with reasonable care, consistent with the standards of the mental health profession, to protect the foreseeable victim of DeMeerleer….The foreseeability of DeMeerleer’s victim is a question of fact appropriately resolved by the fact finder.”(bold mine)

The Supreme Court overturned the trial judge in the case, holding that the judge was in error by using the standard in the Tarasoff case, which requires a licensed clinician to take reasonable precautions to protect only an identifiable victim that is threatened by a patient.

The Court instead relied on the case Petersen v. State of Washington (100 Wn.2d 421 (1983)), in which the Washington State Supreme Court found that Western State Hospital had a duty to take reasonable precautions to protect anyone who might be a foreseeable victim of a patient at Western State.   It is important to understand that the Petersen case was decided in the context of inpatient treatment, while the therapist in Volk was a psychiatrist who saw patients on an outpatient basis. With the Volk holding, the Washington State Supreme Court appears to have created a new duty for outpatient clinicians: that a mental health clinician has a duty to take reasonable precautions to protect anyone who might foreseeably be endangered by the clinician’s client – even individuals who have not been identified by the client.

The idea that an outpatient clinician can determine whether there is a “forseeable” risk of harm to 1) someone who has not been specifically mentioned to a clinician as a target of harm and/or 2) is no longer in treatment with the clinician is hard to fathom, but that appears to be the holding of the Washington State Supreme Court in Volk.

The case will now be returned to the trial judge to determine whether the individuals who were harmed by the therapist’s client were “foreseeable” victims of the client. 

Impact on Mental Health Clinicians

Due to the fact that the Washington State Supreme Court has decided to hold outpatient therapists to the Petersen standard, as opposed to the Tarasoff standard, we as clinicians need to consider what changes we may need to make to minimize our liability for patients who do not tell us they plan to harm a specific person, even if the treatment has ended.

Consultation is one of the best ways to protect ourselves from liability.  When homicidal thoughts or actions are discussed, consultation should be considered, just as it would be when suicidality is discussed.

Clinicians should gather information on patients who may become homicidal (or suicidal; they are often related). Of course there is no way to determine whether a patient is likely to become homicidal or suicidal when they are no longer in treatment, but making these assessments while a patient is in treatment is a best practice.

One of our pre-eminent mental health agencies, Wellspring, has developed a Risk Assessment Tool for use if there is any concern about possible violent actions, suicidal or homicidal, on the part of a patient. This Tool is adapted here. Many thanks to Wellspring for sharing this Tool.

Risk Assessment and Protocol for Duty to Warn under Volk

HIPAA and Washington State privacy laws permit a therapist to disclose a client’s health information if the therapist, in good faith, believes the use or disclosure:

  • Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
  • Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

The definition of “imminent” under Washington law is: “the state or condition of being likely to occur at any moment or near at hand, rather than distant or remote.”  RCW 71.05.020(20).

Therefore, a threat could be “imminent” if a client informs a therapist that he is leaving the session to shoot family members. In this circumstance, the therapist is permitted to take steps to protect the forseeable victims of the serious and imminent, such as notifying law enforcement, the Designated Mental Health Provider (DMHP), or the client’s family members who could be targets of the client.

A threat might not be “imminent” if the threat is more hypothetical (e.g. sometime in the future the client might be a threat to family members).

In order to determine imminent threats that might be posed by a client, therapists should engage in a risk assessment similar to the following:

  1. Consultation – Any case that presents with reckless or dangerous behavior that may involve danger to self or others should be brought for consultation. Even if no specific threat is made to another person, consult as soon as possible with a knowledgeable colleague.
  1. Suicide Risk Assessment – use accepted measure of suicide risk assessment and thoroughly document (factors to be assessed below). 
  • Mental illness
  • Physical illness
  • Previous attempts
  • Family conflict
  • Unemployment
  • Social isolation
  • Suicidal Ideation
  • Substance use
  • Purposelessness
  • Anxiety
  • Feeling Trapped
  • Hopelessness
  • Withdrawal
  • Anger
  • Recklessness
  • Mood changes
  1. Homicide Risk Assessment – Use accepted measure of violence/homicide risk assessment and thoroughly document (factors to be assessed below):               
  • History of violence
  • Substance abuse
  • Mental incapacity
  • Organized plan
  • Unavailability of support group
  • Violent environment
  • Mental illness
  • Physical illness
  • Previous attempts
  • Family conflict
  • Unemployment
  • Social isolation
  1. Documentation – Once the assessments are complete, document the decision making process, i.e.: “Based on the presence/absence of these risk factors and warning signs, I believe there is/isn’t a serious and imminent threat to harm, and that there are/aren’t any foreseeable victims.  I will continue to assess the situation, and if it appears that a serious and imminent threat to foreseeable victims is evident, I will contact those potential victims, the DMHP, and/or the police.”
  1. Other Professionals Contacted – Document the names, contact information, and times any other mental health professionals, lawyers, DMHP, police, doctors, etc.
  1. Forseeable Victims – Document any contact to potential victims of a patient. The clinician may contact individuals or entities who are reasonably able to prevent or lessen the serious or imminent risks to potential victims, such as the potential victim(s), DMHP or the police. In making the disclosure of the client’s health information, the clinician should comply with the HIPAA concept of disclosing only the “minimum necessary” amount of information to accomplish the intended purpose.  In other words, the clinician should release only the minimum amount of information to victims or police that would allow a forseeable victim to gain protection.  The disclosure might include a description of the client, name, workplace, history of violence, and why the forseeable victim may be in danger. 

Below is a summary of the suicide and homicide risks mentioned above that may be used as a way to identify the risks of a given patient:

Suicidality and Homicidality Assessment


Patient Name:

Date of Birth:

Presenting Problem(s):

History of Suicidality:

History of Homicidality:

Specific Current Factors Contributing to Suicidality:

___Physical illness(es)

___Previous attempts (detail)

___Organized Plan

___Family conflict(s)


___Social isolation

___Suicidal Ideation

___Substance use (detail)



___Feeling Trapped


___ Anger


 ___Sudden mood changes

Other Factors:


Specific Current Factors Contributing to Homicidality:

___History of violence

___Substance abuse (detail)

___Intent to harm

___Unavailability of support group

___Violent environment

___Mental illness(es)

___Physical illness(es)

___Family conflict


___Social isolation

___Access to weapons

___Target of violence

Other Factors: