Duty To Warn: Vermont

John McCullough, J.D., and Wilda White, J.D.

On May 30, 2017, the Governor of the State of Vermont signed into the law the first-ever legislation in the United States that includes the explicit finding that:

“[t]the overwhelming majority of people diagnosed with mental illness are not more likely to be violent than any other person; the majority of interpersonal violence in the United States is committed by people with no diagnosable mental illness.”

The finding was included in a law that abrogated a 2016 decision of the Vermont Supreme Court that created a new and additional duty on mental health providers to provide information to caregivers of mental health patients to “enable [the caregivers] to fulfill their role in keeping (the patient) safe” if that patient has violent propensities and “the caregiver is … within the zone of danger of the patient’s violent propensities.”

The decision arose out of a case brought by the family of a furnace repairman who had been assaulted on the job by a young adult two months after his release from a psychiatric hospital into the care of his parents. The family of the severely injured man sued the psychiatric hospital, and the community mental agency where the young adult had received treatment. The trial court had dismissed the case against the hospital and the community mental health agency; however, the Vermont Supreme Court reversed, and said that the case should be allowed to proceed to trial. The Supreme Court held that the hospital and community mental health agency had a duty to advise the young adult’s parents of the danger that their son posed and “to provide sufficient information to the parents so they could fully assume their caretaker responsibilities to assist [their son] and protect against any harmful conduct in which he might engage.” Kuligoski v Brattleboro Retreat, 2016 VT 51 (2016).

The Kuligoski decision appeared to have had a chilling effect on the mental health system: during the quarter in which was the Kuligoski decision was issued, more adults were involuntarily held for emergency examination than in any other quarter of measurement since March 2013. The percent of those involuntarily held who were ultimately found not in need of inpatient care increased by one-third. The decision was also correlated to widespread and prolonged waits in hospital emergency departments for psychiatric beds because hospitals were reluctant to release patients from psychiatric units out of fear of liability.

In response, an unlikely coalition of psychiatric survivors, patient rights advocates, psychiatrists, mental health counselors, community mental health agencies, hospitals, health networks, social workers, and NAMI-VT came together to formulate and implement a legislative strategy to abrogate the Kuligoski decision.

This seminar will share how the coalition succeeded in holding itself together, abrogating Kuligoski, guaranteeing the protections of HIPAA, and restoring the common law duty to protect established in Tarasoff and its progeny.