Judicial Notebook

Chicago-Kent College of Law

As state and local governments continue to privatize services, governmental agencies rely increasingly on contractual arrangements with mental health professionals to provide needed services. Mental health professionals in the private sector often supplement their practices with such contracts. However, these arrangements may pose unexpected liability perils for them.

Government employees are generally entitled to qualified immunity from lawsuits--they can't be held liable for duties performed in good faith. Similarly, government employees who perform psychological evaluations as part of civil commitment determinations are generally entitled to qualified immunity if the evaluations are subsequently challenged as inadequate or deficient.

But are mental health professionals who are not employed by the government but who have merely entered into a contract to provide psychological evaluations entitled to the same level of immunity? The Ninth Circuit of the U.S. Court of Appeals in Jensen v. Lane County, 222 F.3d 570 (9th Cir. 2000), says no. The Ninth Circuit held that a private psychiatrist who contracted with county officials to evaluate individuals for involuntary psychiatric admission was not entitled to qualified immunity.

Background of the case

The plaintiff in this case had been detained under a temporary detention statute after the psychiatrist--one of the defendants--concluded that the plaintiff was mentally ill and a danger to himself or others. The plaintiff was released after the maximum five-day period when the evidence--the psychiatrist relied on written reports because the plaintiff refused to cooperate in his examination--was deemed insufficient to pursue involuntary commitment. The psychiatrist saw the plaintiff briefly on each of the first three days of detention. At the time of release, the psychiatrist told the plaintiff that he had been prepared to release him "a couple of days ago." The plaintiff subsequently filed an action for unlawful restraint for continuing his involuntary detention beyond the time when there was probable cause to detain him. The psychiatrist used the defense of qualified immunity.

While recognizing "the difficult task of evaluating the allegedly mentally ill patient who poses a potential danger," the Ninth Circuit rejected this defense. The Ninth Circuit noted three important rationales for qualified immunity. First, to protect the public from unwarranted timidity by public officials concerned about possible lawsuits and to encourage the vigorous exercise of official authority. Second, to prevent lawsuits from distracting officials from their governmental duties. Third, to ensure talented candidates are not deterred from entering public service by the threat of lawsuits.

The court, however, ruled that these rationales did not apply to mental health professionals from the private sector who have contracted with the government to provide their services. The court determined that market forces would overcome any unwarranted timidity as various groups of professionals compete to provide such services. A failure to adequately complete the duties for which the professional contracted would lead to his or her replacement by competitors. The court also noted that if the threat of liability is deterring talented individuals from pursuing state contracts, the state could raise compensation levels and provide other incentives such as insurance or indemnification agreements to maintain high levels of participation in this joint undertaking.

Implications for psychology

This case leaves a number of questions unanswered. Does the subjective nature of mental health evaluations generate a great deal of liability exposure that will deter qualified mental health professionals from providing such evaluations? Will mental health professionals compromise their judgments to avoid liability exposure? Or, conversely, should fear of liability be encouraged as a means to enhance the quality of these evaluations?

"Judicial notebook" is written by the Courtwatch Committee of APA's Div 9. (Society for the Psychological Study of Social Issues). This column seeks to encourage involvement by psychologists in judicial decision- making.