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Volk v. DeMeerleer
Parties from Dangerous
by Patrick J. Preston
In late 2016, Washington's highest court imposed an expansive tort duty on therapists practicing in the outpatient setting.
To promote public safety, therapists must "affir-matively protect" foreseeable third parties from the
dangerous propensities of outpatients. 1 The common
law duty to protect arises from the therapeutic relationship, independently of any ability of therapists to
control such outpatients in the community.
Washington’s lower courts have yet to develop the
scope of the duty, which represents an “outlier” in a
50-state survey. In other jurisdictions, no outpatient
duty exists, a narrow duty exists to warn identifiable
targets of threats, or the duty is clearly defined by
statute. In Washington, professional impacts have
been forecasted for therapists2 (see also Dr. Berner’s
Individuals with mental illness may be deterred
from outpatient services and treatment. The high
standard for civil commitment and the limited capacity of related public resources present additional challenges to advancing public safety through the duty.
Anticipating such issues and seeking clarity of the
duty, many in the mental health community support
FEB 2018 | NWLawyer 17