PATRICK J. PRESTON is an
Assistant Attorney Gen-
eral in the University of
Washington Division where
he focuses on health
care issues. The opinions and ideas
reflected in this article are his own and
do not reflect those of the Office of the
Attorney General of Washington.
Volk. Such stakeholders are considering
policy changes to address the expansive
duty to protect all foreseeable persons
potentially endangered by an outpatient,
or they already have done so. For some
therapists, concerns over Volk liability are
prompting them to screen out potential
patients with homicidal or suicidal
ideation, terminate treatment of similar
patients or those with a history of domestic violence, or consider early retirement.
In many important aspects, however, the
lasting impacts of the controlling Volk
decision have yet to be seen.
Beyond administrative and clinical
responses, the legislative check and
balance envisioned by the Volk Court
of Appeals majority decision has
begun with the Volk Study and through
bills introduced to refine the duty of
outpatient therapists to protect third
parties. While Washington’s highest
court could revisit the duty, legislative
action appears more likely.26 Following Petersen, the ITA amendment
took four years to enact. Perhaps the
exigencies expressed in the Volk Study
will prompt quicker reform to strike
a new balance among public safety,
clinical judgment, and the rights
of people in need of mental health
services and treatment. NWL
1. Volk v. DeMeerleer, 187 Wn.2d 241, 279, 386
P.3d 254 (2016).
2. For purposes of this article, “therapists” in-
cludes mental health professionals defined
by RCW 71.05.020( 30), e.g., as psychia-
trists, psychologists, and social workers,
and other professionals who are subject to
Washington’s mental health laws.
3. Washington’s House Judiciary Committee
commissioned the “Volk v. DeMeerleer
Study” (Volk Study), published by the
University of Washington School of Law,
Center for Law, Science and Global Health,
on December 1, 2017. Accessed at: https://
4. See Volk v. DeMeerleer, 184 Wn. App. 389,
406-07, 337 P.3d 372 (2014).
5. Volk Study, Appendix A (“Volk Study
Appropriation,” Senate Bill 5883, Operating
Budget, Section 606).
6. Tarasoff v. Regents of the University of
California, 13 Cal.3d 177 (1974); Tarasoff
v. Regents of University of California, 17
Cal.3d 425 (1976). As noted in the Volk
Study, the “duty to protect” announced by
the 1974 Tarasoff decision and seemingly
narrower “duty to warn” in the 1976
Tarasoff decision have created “[c]onsiderable
confusion with respect to terminology” in
subsequent controlling cases and statutes
across other jurisdictions. See Volk Study
7. See Cal. Civ. Code, Section 43.92 (which in
2013 replaced California’s post-Tarasoff statutory “duty to warn” with a “duty to protect,”
but emphasized this was not a substantive
change in the duty); Volk Study at 7.
8. Petersen v. State of Washington, 100 Wn.2d
421, 671 P.2d 230 (1983).
9. Volk v. DeMeerleer, 184 Wn. App. 389, 394
10. Id. at 441 (Brown, A.C.J., dissenting) (citing
former RCW 71.05.120( 2), currently codified at RCW 71.05.120( 3)).
11. Volk Study at 22; see Volk, 187 Wn.2d at 273.
12. Volk Study at 21.
13. Id. (citing Ohio Rev. Code Ann. Section
14. Volk Study at 45.
15. See Jaclyn Greenberg, "Volk v. DeMeerleer:
An Unprincipled Divorce Of Dangerous-
ness And The Tarasoff Duty To Protect,"
92 Wash. L. Rev. Online 13, 23-24 (2017)
(quoting Binschus v. State, 186 Wn.2d 573,
579 (2016)). Accessed at: https://www.law.
16. See id. at 16.
17. See Volk Study at 49.
18. See Volk Study at 21-22; Volk, 187 Wn.2d at
280-88 (Wiggins, J., dissenting).
19. Volk Study, Appendix E, Northwest Health
Law Advocates correspondence dated Nov.
20. See U.S. Dept. of Health and Human
Services, Substance Abuse and Mental
Health Services Administration, Behavioral
Health Barometer, Washington, Vol. 4, at 9
(reporting that in Washington from 2011
to 2015, an average of 58.3% of adults with
any mental illness did not receive mental
21. Disability Rights Washington, "Jailing People
With Mental Illness" (2002). Accessed at:
22. See State of Washington v. Trey M.,
186 Wn.2d 884, 903 (2016) (whether a
“defendant’s statements ‘were serious
threats and that a reasonable speaker
would so regard them, [or] . . . a cry for
help from a mentally troubled [person],
directed toward mental health professionals who could help him’ is an appropriate
question for the fact finder”) (quoting
State of Washington v. Schaler, 169 Wn.2d
274, 289-90 (2010)).
23. Id. at 908 (Gordon McCloud, J., dissenting).
24. See Washington State Administrative
Office of the Courts, Domestic Violence
Manual for Judges – 2015 at 2-26 (updated
Feb. 25, 2016). Accessed at: https://www.
25. By way of example, the Volk Study reported
an Iowa Supreme Court decision declining
to adopt the Tarasoff duty to protect in a
case in which a husband with a history of
domestic violence and psychiatric issues
killed his wife after his release from a treatment facility. The court instead relied on a
promise to notify the victim that triggered
liability under Section 323, Restatement
(Second) of Torts. See Volk Study at 64-65
(discussing Estate of Long ex rel. Smith v.
Broadlawns Medical Center, 656 N. W.2d 71
26. See SB 5800/HB 1810 - 2017-18, Concerning obligations of mental health professionals, re-introduced Jan. 8, 2018, and referred
to Law & Justice Committee. http://app.leg.
Protecting Third Parties from Dangerous Outpatients (continued from page 25)