Issue: Whether a psychotherapist is liable under tort law for failure to institute involuntary commitment proceedings

Index Topics: Duty to Warn/Protect

Facts: Avery, an IBM employee who suffered from Post Traumatic Stress Disorder (PTSD) and was under the care of mental health professionals at a Veteran's Administration Medical Center (the "VA"), threatened to blow up IBM. His doctor asked Avery to commit himself voluntarily. He agreed to do so, but never carried through. VA doctors warned IBM, local police, the FBI, the US Attorney, and VA district counsel of the threats. VA doctors also discussed whether Avery could be involuntarily committed and concluded he could not because his emotional problems were not considered to be mental illness, one of the prongs of the North Carolina civil commitment statute. Avery shot and killed an IBM worker. Currie, the administratrix of Avery's estate, sued the federal government pursuant to the Federal Tort Claims Act (FTCA), alleging that the government psychotherapists breached a duty to commit Avery. The district court held that North Carolina would recognize a Tarasoff duty to warn (Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334 (1976) ) and that the duty might extend to all foreseeable victims, not merely readily identifiable victims. The court then held that the obligation to control the patient's conduct equally gave rise to a duty to commit. Recognizing the potential harm to public policy by imposition of a broad duty to commit (such as efficacy of therapy, patients' rights to privacy, liberty interest risked by over commitment), the court created a "psychotherapist judgment rule." Under the rule, psychotherapists would be held to a standard of good faith, independence, and thoroughness in their decisions not to commit. Applying this test to the facts, the court declined to impose liability. Currie appealed to the US Court of Appeals for the Fourth Circuit.

APA's Position: APA filed an amicus brief arguing that: (1) the district court's effort to prescribe broad rules of tort liability under North Carolina law was unnecessary and inappropriate; (2) the imposition of liability on therapists for failing accurately to predict and control their patients' future dangerousness was unsound as a matter of law and public policy because (a) mental health professionals can neither reliably nor validly predict dangerousness and imposition of tort liability for their failure to do so is therefore unwarranted, and (b) a rule imposing a duty to assess dangerousness and take preventive measures will undermine the goal of public safety it is meant to serve; and (3) the imposition of a duty to protect third parties will result in the unnecessary deprivation of liberty in significant numbers of cases.

Result: The Fourth Circuit held that the North Carolina Supreme Court could not hold a competent therapist to a duty of affirmatively seeking control over his patient through involuntary commitment. In reaching this result, the Fourth Circuit drew heavily on the reasoning suggested in APA's brief. It refused to impose a duty to commit on grounds that the imposition of such a duty would: (a) require breaches of the confidential patient-therapist relationship that would destroy the therapist's ability to continue to treat the patient; and (b) threaten the constitutionally protected liberty interests of the patient. The opinion specifically disapproved of Lipari v. Sears, Roebuck, & Co., 497 F.Supp. 185 (D. Neb. 1980) the only federal decision at that time recognizing a duty to commit. The opinion refuted the policy rationale typically offered in support of imposing a duty to commit, and specifically endorsed the policy reasons APA offered against recognition of such a duty.