Hostname: page-component-cd9895bd7-8ctnn Total loading time: 0 Render date: 2024-12-24T01:46:00.509Z Has data issue: false hasContentIssue false
  • English
  • Français

The Psychiatric Nurse’s Duty to Warn Potential Victims of Homicidal Psychotherapy Outpatients

Published online by Cambridge University Press:  27 April 2021

Diane K. Kjervik
Get access Rights & Permissions [Opens in a new window]

Extract

During the 1960s, master's level programs evolved to educate psychiatric nurses to become teachers, administrators and clinicians. Prior to this time, psychiatric nurses had functioned primarily in inpatient settings, but gradually these nurses began working as primary therapists in outpatient clinics, community mental health centers and independent practices. In 1976, the American Nurses’ Association (ANA) published its Statement on Psychianic and Mental Health Nursing Practice which identified the master's prepared psychiatric nurse as a “psychiatric and mental health nursing specialist.” Nurses at this level were expected to be experts in psychotherapeutic methodologies and could practice psychotherapy independently.

Nursing practice acts have changed to allow for the expanding nurse role. Prohibitions against diagnosis and treatment that were recommended by the ANA in 1955 were eliminated in the ANA's 1976 Model Practice Act. In 1980, the ANA suggested legislation that would include diagnosis, counseling, intervention and the management of illness within the definition of nursing

Type
Article
Information
Law, Medicine and Healthcare , Volume 9 , Issue 4 , December 1981 , pp. 11 - 39
Copyright
Copyright © American Society of Law, Medicine and Ethics 1981

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

American Nurses' Association, Statement on Psychiatric and Mental Health Nursing Practice 11 (ANA Publication Code PMH-3; December 1976).Google Scholar
Bullough, B., The Law andthe Expanding Nursing Role (2d edition) (Appleton, Century, Crofts, New York) (1980) at 51 [hereinafter cited as Bullough].Google Scholar
American Nurses' Association, The Nursing Practice Act: Suggested State Legislation 6 (ANA Publication Code #G-142 1M; February 1980).Google Scholar
Bullough, , supra note 2. The seven states are Rhode Island, Arkansas, Georgia, West Virginia, Ohio, Oklahoma, and Texas.Google Scholar
McIntosh v. Milano, 403 A.2d 500 (N.J. 1979).Google Scholar
Shaw v. Glickman, 415 A.2d 625 (Md. App. 1980).Google Scholar
Richards v. Stanley, 271 P.2d 23 (Cal. 1954).Google Scholar
Note, Tarasoff v. Regents of the University of California: The Psychotherapist's Peril, University of Pittsburgh Law Review 37(1):155 (1976).Google Scholar
Restatement (Second) of Torts §314 (1965).Google Scholar
Note, Psychiatrists' Duty to the Public: Protection from Dangerous Patients, University of Illinois Law Forum 1976 (4): 1103, 1104 (1976).Google Scholar
See, e.g., Williams v. United States, 450 F. Supp. 1040 (D.S.D. 1978).Google Scholar
Tarasoff v. Regents of the University of California, 551 P.2d 334, 131 Cal. Rptr. 14 (1976) [hereinafter cited as Tarasoff].Google Scholar
Tarasoff, supra note 12, 551 P.2d at 340.Google Scholar
Id. at 342.Google Scholar
Id. at 345.Google Scholar
Id.Google Scholar
Id. at 347.Google Scholar
See Cal. Evid. Code §1024 (West 1966).Google Scholar
Tarasoff, supra note 12, 551 P.2d at 344.Google Scholar
Id. at 344.Google Scholar
Id. at 347.Google Scholar
McIntosh v. Milano, supra note 5.Google Scholar
Id. at 510.Google Scholar
Id.Google Scholar
Lemelle v. Superior Court for the County of Orange, 143 Cal. Rptr. 450 (Cal. App. 1978).Google Scholar
141 Cal. Rptr. 92 (Cal. App. 1977).Google Scholar
See Hawkins v. King County Department of Rehabilitative Services, 602 P. 2d 361 (Wash. App. 1979) (lawyer had no duty to warn potential victim of his client's intent where the victim knew of the danger); Leedy v. Hartnett, 510 F. Supp. 1125, 1131 (M.D. Pa. 1981) (whether victim knowingly and voluntarily assumed risk of being assaulted is relevant factor in establishing whether defendant is liable for failure to warn).Google Scholar
Leedy v. Hartnett, supra note 27, at 1130; Thompson v. County of Alameda, 614 P.2d 728, 167 Cal. Rptr. 70 (1980) (county institution had no duty to warn when juvenile resident on leave made only general threats to kill a young child in the community).Google Scholar
497 F. Supp. 185 (D. Neb. 1980).Google Scholar
See Mavroudis v. Superior Court of County of San Mateo, 162 Cal. Rptr. 724 (Cal. App. 1980). The court followed the Tarasoff holding in that it granted the plaintiff's writ of mandamus to compel the production of a mental hospital's records. The court said the hospital might have had a duty to warn and the records would make clear the hospital's legal obligations.Google Scholar
See Seibel v. City and County of Honolulu 602 P.2d 532 (Haw. 1979). A 15 year old girl was killed by a man released by the prosecutor's office. Even though the city knew of the murderer's past prosecution and of his suspected new offense, the city had no control over the murderer, and thus the court held that no special relationship existed. See also DeSuza v. Andersack, 133 Cal. Rptr. 920 (Cal. App. 1976). The court held that there was no special relationship between an intoxicated driver and his passenger sufficient to create a duty on the part of the passenger to protect an injured third party: “Neither the driver nor the passenger was asserting the right to control the other.” Id. at 925.Google Scholar
In re Edward, D., 132 Cal. Rptr. 100 (Cal. App. 1976) (dissent noted that only physical harm was dealt with by the Tarasoff court); Borer v. American Airlines, 563 P.2d 858, 138 Cal. Rptr. 302 (1977) (Tarasoff could not be stretched to cover children's loss of parental consortium).Google Scholar
Note, A Psychotherapist Who Knows or Should Know His Patient IntendsViolence to Another Incurs A Duty to Warn, Cumberland Law Review 7(3):551 (1977); Note, The Dangerous Patient Exception and the Duty to Warn, University of California Davis Review 9:549 (1976).Google Scholar
Note, Imposing a Duty to Warn on Psychiatrists: A Judicial Threat to the Psychiatric Profession, University of Colorado Law Review 48(1):238 (1977); Stone, The Tatasoff Decisions: Swing Psychotherapists to Safeguard Society, Harvard Law Review 90(2):358 (1976).Google Scholar
Stone, , supra note 34, at 369 (1976).Google Scholar
Note, Tarasoff v. Regents of the University of California: The Duty to Warn: Common Law and Statutory Problems for California Psychotherapists, California Western Law Review 14(0):153 (1978); Note, Imposing a Duty to Warn on Psychiatrists, supra note 34, at 296. See also Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974).Google Scholar
Stone, , supra note 34, at 371; Note, Tarasoff v. Regents of the University of California: The Psychotherapist's Peril, supra note 8, at 164.Google Scholar
Cumberland Law Review, supra note 33, at 558.Google Scholar
Note, Imposing a Duty to Warn on Psychiatrists, supra note 34, at 301. See also Griswold v. Connecticut, 381 U.S. 479 (1965).Google Scholar
See, e.g., Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp. 793, 801–02 (N.D. Ohio 1965).Google Scholar
Note, Tarasoff v. Regents of the University of California: The Duty to Warn: Common Law and Statutory Problems for California Psychotherapists, supra note 36, at 178.Google Scholar
See, e.g., Cal. Evid. Code §1024 (West 1966).Google Scholar
McIntosh v. Milano, supra note 5, at 512.Google Scholar
American Nurses' Association, Code for Nurses with Interpretative Statements (ANA Publication Code No. G-56 25M, 1976) at 6.Google Scholar
Id. at 7.Google Scholar
Fenner, K., Ethics and Law in Nursing (Van Nostrand Reinhold, New York) (1980) at 38.Google Scholar
Minnesota Board of Nursing, Guidelines for Assignment of Nursing Personnel (1972) at 5.Google Scholar
Beauchamp, T. Childress, J., Principles of Biomedical Ethics (Oxford University Press, New York) (1979) at 296 [hereinafter cited as Beauchamp].Google Scholar
Fleming, M., The Patient or HisVictim: The Therapist's Dilemma, California Law Review 62(3): 1025 (1974).Google ScholarPubMed
Note, Untangling Tarasoff, Hastings Law Journal 29:179 (1977).Google Scholar
Slovenko, , Psychotherapy and Confidentiality, Cleveland State Law Review 24(3):375 (1975); Note, Tort Liability of the Psychotherapist, University of San Francisco Law Review 8:405 (1973).Google ScholarPubMed
Note, Untangling Tarasoff, supra note 50, at 190.Google Scholar
As to child abuse see, e.g., Idaho Code Ann. §16–1619 (1978) (includes nurses); Minn. Stat. Ann. §626. 556 (nurse included); N.H. Rev. Stat. Ann. 169: 37–169:45 (nurse included). As to gunshot wounds see, e.g., Minn. Stat. Ann. §626.52 (nurses included); Del. Code Ann. tit. 24, §1762 (Supp. 1964) (physicians); Iowa Code §147.111-.113 (1966). As to venereal disease, Del. Code Ann. tit. 16, §702 (1953); Me. Rev. Stat. Ann. ch. 22, §1094 (1964) (physicians and institutions).Google Scholar
Simonsen v. Swenson, 177 N.W. 831 (Neb. 1920).Google Scholar
Note, Tort Liability of the Psychotherapist, supra note 51, at 405.Google Scholar
American Nurses Association, Code for Nurses (1976) at 8 (emphasis supplied).Google Scholar
Id. at 19.Google Scholar
Id.Google Scholar
Beauchamp, , supra note 48, at 297.Google Scholar
Fenner, , supra note 46, at 38.Google Scholar
Stone, , supra note 34, at 366; Note, Psychiatrists' Duty to the Public: Protection from Dangerous Patients, supra note 10, at 1125. See also Merchant's National Bank of Fargo v. United States, 272 F. Supp. 409 (D.N.D. 1967).Google Scholar
Note, Imposing a Duty to Warn on Psychiatrists, supra note 34, at 288, 307–09.Google Scholar
Cumberland Law Review, supra note 33, at 558; Note, Imposing A Duty to Warn on Psychiatrists, supra note 34, at 289; Note, Tarasoff v. Regents of the University of California: The Duty to Warn: Common Law and Statutory Problems for California Psychotherapists, supra note 36, at 166.Google Scholar
Cocozza, Steadman, , Prediction in Psychiatry: An Example of Misplaced Confidence in Experts, Social Problems 25(3):265 (1978).Google Scholar
Note, Tarasoff v. Regents of the University of California: The Duty to Warn: Common Law and Statutory Problems for California Psychotherapists, supra note 36, at 372.Google Scholar
Stone, , supra note 34, at 372.Google Scholar
Note, Untangling Tarasoff, supra note 50, at 203.Google Scholar
McIntosh v. Milano, supra note 5, at 510.Google Scholar
Id. at 514.Google Scholar
Tarasoff, , supra note 12, 551 P. 2d at 344.Google Scholar
Note, Untangling Tarasoff, supra note 48, at 208.Google Scholar
Tarasoff, , supra note 12, 551 P.2d at 345.Google Scholar
Aguilera, Messick, , Crisis Intervention (3rd Edition) (Mosby, St. Louis) (1978) at 66.Google Scholar
Note, Psychiatrists' Duty to the Public, supra note 10, at 1126; Fleming, M., supra note 49, at 1064.Google Scholar
Note, Tort Liability of the Psychotherapist, supra note 51, at 433.Google Scholar
Stone, , supra note 34, at 374.Google Scholar
Note, Psychiatrists' Duty to the Public, supra note 10, at 1126.Google Scholar
Fleming, M., supra note 49, at 1064.Google Scholar