\u3ci\u3eVolk v. DeMeerleer\u3c/i\u3e: An Unprincipled Divorce of Dangerousness and the \u3ci\u3eTarasoff\u3c/i\u3e Duty to Protect

Since its inception in Tarasoff v. Regents of the University of the California, the duty to protect third parties imposed on mental health professionals (MHPs) has been the subject of considerable scrutiny. Clinicians and legal scholars alike derided the original duty to protect “anyone foreseeable” as unworkable—undermining the therapeutic relationship and placing MHPs in the impossible position of having to predict their patients’ violent future. Over time, case law and legislation narrowed the duty to something less problematic: a “duty to warn” identifiable victims who face imminent threat of serious harm. However, Volk v. DeMeerleer, reset the duty for Washington MHPs to its original expansiveness, and arguably broadened the basis for imposing the duty. The decision effectively marries the duty to the mere presence of a therapeutic relationship, and divorces it from a patient’s dangerousness—the objective criteria this Article argues is an implicit and necessary component of the duty. Dangerousness is not only a reasonable basis upon which to trigger the duty to protect, it also embodies the crucial development in mental health law that a mentally ill person’s rights cannot be curtailed absent due process. This Article argues that Volk effectively denies the need for objective criteria to trigger the duty and, as a result, is legally unsupportable as well as practically unworkable. Worst of all, Volk undermines the legalist approach to mental health laws which arose in response to the repugnant presumption that a mentally ill person necessarily threatens the public’s safety. This Article first traces the rise of rights-based mental health laws and the role of dangerousness, as well as the origin of the duty to protect. Second, it reviews trends in the duty to protect case law and legislation to identify the implicit role that dangerousness played in limiting Tarasoff. It further reflects on how dangerousness, although flawed, represents the best option for mediating the tension between honoring the rights of mentally ill persons and protecting society. Finally, this Article sets out the facts and rulings of Volk, concluding with a call for legislative reform. Absent a course correction, the decision invites a return to the false notion that mentally ill persons are inherently dangerous