Vermont Supreme Court Finds that Mental Health Providers Have a Duty to Warn About the Dangerous Tendencies of Certain Patients

In Kuligoski et al, v. Brattleboro Retreat and Northeast Kingdom Human Services, 2016 VT 54A, the Supreme Court entered an amended opinion regarding mental health professionals’ duties to warn and protect.

Issue: A mental health patient (not party to this suit) was discharged from inpatient treatment at the Brattleboro Retreat, despite the fact that he continued to hear voices and was noted as being at high-risk for poor compliance with post-discharge treatment. Patient began to receive outpatient services from NKHS while living with his mother, who was in charge of administering his medication and was actively involved in his care. During a psychotic haze, patient assaulted and injured the Plaintiff, a stranger, who sued both mental health services providers on theories or failure to warn, failure to treat, failure to train parent, improper release, and negligent undertaking. The trial court granted summary judgment for Defendants on all claims, and Plaintiff appealed. The Court issued an initial opinion, and was met with a flurry of motions to rehear and amicus briefs. The Court then issued an amended opinion.

Holding: The Court undertook an extensive review of the case law from Tarasoff to Peck, before affirming summary judgment on all theories other than duty to warn. In particular, the Court found that, under Peck, there is no duty to treat and no relevant cause of action for negligent undertaking in the mental health context, but there is a duty to warn where there are identifiable and foreseeable victims. As to the duty to warn, the Court found that the patient’s parents were in the zone of danger (though they were not the ultimate victims of his attack) and held that when a caregiver is in the zone of danger and the mental health provider relies on the caregiver’s active involvement in the patient’s treatment, the provider has a duty to warn the caregiver about any dangerous issues. The Court presented this duty to warn as limited, and dismissed any concerns regarding statutes and ethical regulations dealing with confidentiality by saying that the disclosures required under this standard are not inconsistent with the confidentiality regulations. The Court rejected Plaintiff’s claim under a theory of duty to protect (or duty not to release patient from inpatient custody), and specifically rejected a provision to the contrary enshrined by the Restatement 3d of Torts. The Court also rejected Plaintiff’s claim of negligent undertaking, finding that there was no allegation that services provided by the mental health providers increased the risk to third persons.

Dissent, Reiber, C.J. (joined by Skoglund, J.): Chief Justice Reiber authored a sharp dissent in which he attacked the “new, ill-defined, and unprecedented duty of care [imposed] on mental health providers in Vermont” by the majority. He particularly took issue with the majority’s abandonment of judicial restraint, given that all the previous case law that imposed any duty of care upon mental health providers did so only in the context of a specifically identifiable victim, which was not present here. He also noted that similar holdings in other states are tied to a duty to control/duty to hospitalize, which (as the majority noted) must be rejected in Vermont, because this state has a public policy of trying to avoid hospitalization. He warned that the majority’s opinion imposes a heavy and novel burden on mental health providers, and leaves them in a no-man’s land of trying to navigate their professional responsibilities, ethical obligations re: confidentiality, and the Court’s new duty of care.

Dissent, Skoglund, J.: Justice Skoglund joined Chief Justice Reiber’s dissent, but also wrote separately to emphasize her objection to the “judicial arrogance” with which the majority dismissed concerns regarding confidentiality obligations and imposed a wide range of new duties on another profession without understanding the nuances of that profession.