On January 22, 2018, WMHCA board member Duncan Hollomon delivered this testimony at the public hearing held by the in the Senate Committee on Labor & Commerce

Hello Madam chair. Thank you for providing this opportunity for me to speak in favor of SB 6448.

I am Duncan Hollomon. I represent the Washington Mental Health Counselors Association, whose members are located throughout the state of Washington.

Senate bill 6448 which would provide for the inclusion of master’s level professional practitioners to those authorized to provide mental health services to those who have been injured on the job.

At this point only psychologists, psychiatrists and nurse practitioners are so authorized.

I’d like to highlight five areas for your consideration

1. Training: mental health counselors are specifically trained to provide the kinds of services that these injured folks need, including emotional and relationship counseling.

2. Quality: the quality and effectiveness of masters level providers are equal to or superior to that provided by doctoral level practitioners.

3. Cost: Masters level providers are typically considerably less expensive than doctoral level providers.

4. Availability: There are many areas of the state where doctoral level providers are in short supply, whereas masters level practitioners are far more available, particularly in rural area.

5. Current Practices: Currently master’s level providers are authorized to provide services under every insurance plan throughout the state of Washington.

In summary, this bill would improve access at lower cost to quality mental health services by fully competent providers to those who desperately need them.

Volk Update: January, 2018

—- Duncan Hollomon, JD, PhD, LMHC. WHMCA board Treasurer

What you need to know:

Following the decision of the WA Supreme Court in Volk v. deMeerleer, the legislature authorized the expenditure of approximately $160,000 to the UW law school to study two basic questions:

  1. How have the various states defined the duty to protect/warn in situations where a client poses a danger to a third party? How does our state compare to the others following the Volk decision?
  2. Did the Volk decision change the applicable standard? What are the implications of the Volk decision for future access to mental health services? Will providers be less likely to serve clients with a potential for violent behavior?

On November 18 the study group released a draft powerpoint of their findings at an hour-long presentation. Duncan Hollomon, JD, PhD, and WMHCA board member was among the leaders of provider organizations present.

This summary of their findings was provided by the study group:

  • Volk substantially changed the duty to protect and warn in Washington with respect to outpatient mental health care
    • The duty is broader for outpatient providers than for inpatient providers who have more power to control.
  • Washington is now an outlier
    • No other state by Wisconsin has such a broad duty for outpatient care
  • Providers are uncertain how to practice under Volk
  • Little to no additional inpatient capacity
    • Washington is still relying on single bed certifications to fill gaps in access to inpatient mental health care.

The following are Duncan’s reflections:

The study group highlighted several critical areas where there is confusion or uncertainty regarding the duty of mental health practitioners to the public at large in response to the threat of violence by a client. Prior to the Volk decision, many in our field assumed that the duty, as defined in Tarasoff, was limited to situations in which there a threat was made (not just posed) by a client, and there was an identifiable or identified potential victim. Indeed, this was the standard codified as (now) RCW 71.05.120(3):

mental health professionals have a “duty to warn or to take reasonable precautions to provide protection from violent behavior where the patient has communicated an actual threat of physical violence against a reasonably identifiable victim or victims.” listed under the Involuntary Treatment Act (inpatient).

However, for reasons that were not explained in their opinion, the court did not rely on the statute, but rather looked to a previous case[1] as precedent, and defined the duty much more broadly. The Volk court’s opinion indicates that the duty is a duty to protect, not just to warn[2], which is extended to any member of the public who it is “reasonably foreseeable” could become a victim of a client’s violent behavior, based on the “special relationship” between the treating professional and the client, regardless of whether or not there was an actual threat made.

[1] Petersen v. State of Washington 100 Wn. 2d 421 (1983) 671 P.2d 230

[2] In the so-called Tarasoff II decision, issued by the California Supreme Court two years following its initial decision, the court was explicit that the duty was to protect, not just to warn.

As things stand currently, it appears that there is one standard for in-patient treatment (the language of the statute) and one for out-patient (the Volk language). It’s not clear that this situation is optimal, or that logically it makes sense. That is, the standard is much broader in the very area of practice (outpatient) where practitioners have the lesser degree of control over their client’s behavior.

We are faced with a number of areas of uncertainty, based on the imprecise language of the Volk court:

  1. How do we determine whether a “special relationship” exists? It appears that the length of time in treatment is relevant, but in Volk there was a lag of some 4 months since the psychiatrist and the patient had met together.
  2. What does “reasonably foreseeable” victim mean in the context of potentially dangerous clients?
  3. How do we assess the potential for dangerousness? What is the level at which the duty to protect is triggered?
  4. How is the duty to protect to be discharged? What “precautions” should be taken

The Need for Professional Standards of Care

One of the challenges that we face as mental health practitioners is the lack of clear, coherent professional standards in the area of a client’s potential danger to others to which the courts can look to determine the question of negligence. Rather than having the court impose a standard, it would serve us better to generate our own, which would serve as guidance to courts.

I would suggest that to clarify some of the areas of uncertainty in the Volk opinion we generate some standards of practice for situations of potential danger to third parties, just as we have in situations of the potential danger of suicide. Those standards would include protocols for threat assessment and for outlining the possible ways we can fulfill our duty to protect.

A final word: Understanding Negligence

Finally, I would stress that we are not being held potentially liable for the behavior of another, although people often talk that way, even lawyers who should know better. The Volk decision involved a question of negligence. In order to determine whether or not there was negligence, the court looks to see what the duty was that was breached. If I have a duty is to exercise a certain level of care toward someone, and that person was harmed because I failed to exercise that level of care, then I will be found negligent with regard to that duty.

The Volk court did NOT find that the psychiatrist was negligent; it said that he owed a third party a duty to protect. Whether or not he was negligent with regard to that duty was a question for the trial court. And, we’ll never know how the court would have ruled on that question, because, following the decision of the Supreme Court, the care was settled.

Bottom line: Make sure you are providing the appropriate level of due diligence and care in treating your clients, particularly the ones that have some potential for violence. If you are meeting the professional standard of care, the court will not find you negligent, even if your client eventually does harm to a third party.

WMHCA has agreed to hire Melanie Stewart to lobby on our behalf in favor of a bill that would include mental health counselors as authorized providers under Labor and Industries workers compensation.

BACKGROUND: The Department of Labor and Industries is authorized to provide financial support for treatment for injuries, including mental health issues, resulting from events at the workplace.  According to authorizing legislation, the Department is charged with establishing the standards for treatment, as well as determining who is authorized to provide mental health services:

RCW 51.36.010 To this end, the department shall establish minimum standards for providers who treat workers from both state fund and self-insured employers.

However, according to the administrative rules that were generated, only certain provider professions were authorized to provide treatment:

(3) Mental health services to workers are limited to those provided by psychiatrists, doctoral level psychologists and psychiatric advanced registered nurse practitioners and according to department policy.  WAC 296-21-270

Accordingly, licensed mental health counselors are not authorized to provide mental health services under workers compensation in Washington State.

WORKING ON YOUR BEHALF:  Our lobbyist will be working on our behalf to support legislation  in the upcoming session to change this restriction, and authorize mental health counselors to provide treatment under workers compensation.  The bill number is not yet determined, but we’ll keep you posted.

For more information, contact Duncan Hollomon, JD, PhD, WMHCA board member at [email protected]

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