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Mental Health Law – New requirements for mental health practitioners passed in the 2013 Tennessee legislative session.

Posted on Jul 29 2013 8:10AM by Attorney, Jason A. Lee

Analysis:  The 2013 Tennessee legislative session brought about an important new addition to the Tennessee Mental Health statutes found in Title 33.  Specifically, Public Chapter No. 300 which was signed into law by Tennessee Governor Bill Haslam on April 29, 2013, added T.C.A. § 33-3-210.  This statute went into effect on July 1, 2013.  It provides specific reporting requirements for mental health professionals to report “immediately” to law enforcement when their patient threatens to harm an identifiable victim under certain circumstances.  This statute provides as follows:

 

(a) If a service recipient has communicated to a qualified mental health professional or behavior analyst an actual threat of serious bodily harm or death against a reasonably identifiable victim or victims, the qualified mental health professional or behavior analyst, using the reasonable skill, knowledge, and care ordinarily possessed and exercised by the professional's specialty under similar circumstances, who has determined or reasonably should have determined that the service recipient has the apparent ability to commit such an act and is likely to carry out the threat unless prevented from doing so, shall immediately report the service recipient to local law enforcement, who shall take appropriate action based upon the information reported.

(b) If a mental health professional or behavior analyst is required to report pursuant to subsection (a), the professional or analyst shall report the following information:

(1) Complete name and all aliases of the service recipient;

(2) Name of the mental health professional or behavior analyst and name of private or state hospital or treatment resource from which the individual may be receiving services; and

(3) Date of birth of the service recipient.

(c) The information in subdivisions (b)(1)–(3), the confidentiality of which is protected by other statutes or regulations, shall be maintained as confidential and not subject to public inspection pursuant to such statutes or regulations, except for such use as may be necessary in the conduct of any proceedings pursuant to §§ 39–17–1316, 39–17–1353 and 39–17–1354.

 

(emphasis added).  In order to properly analyze this statute there is some defined terms that must be identified.  The term, “service recipient” is defined in T.C.A. § 33-1-101 as follows:

 

(23) “Service recipient” means a person who is receiving service, has applied for service, or for whom someone has applied for or proposed service because the person has mental illness, serious emotional disturbance, or a developmental disability;

 

Additionally, the term “qualified mental health professional” is also defined in T.C.A. § 33-1-101 as follows:

 

(20) “Qualified mental health professional” means a person who is licensed in the state, if required for the profession, and who is a psychiatrist; physician with expertise in psychiatry as determined by training, education, or experience; psychologist with health service provider designation; psychological examiner or senior psychological examiner; licensed master's social worker with two (2) years of mental health experience or licensed clinical social worker; marital and family therapist; nurse with a master's degree in nursing who functions as a psychiatric nurse; professional counselor; or if the person is providing service to service recipients who are children, any of the above educational credentials plus mental health experience with children;

 

As a result of this statute, certain mental health professionals are now required by Tennessee law to immediately report patients to local law enforcement if the patient’s actions and statements are consistent with the requirements in the statute.  Basically, a mental health professional must report their patients to local law enforcement if the following circumstances are present:

 

1.          Patient has communicated an actual threat of serious bodily harm or death against a reasonably identifiable victim or victims.

2.          In the mental health professional’s opinion the patient has the apparent ability to commit such an act.

3.          The patient is likely to carry out the threat unless prevented from doing so. 

 

It is important for mental health professionals to know about this statute and to keep it in mind when counseling individuals who in any way voice any types of threats of harm against anyone. 

 

Interestingly, T.C.A. § 33-3-206 also provides certain requirements for mental health practitioners who have patients who communicate specific threats of bodily harm against a clearly identified victim.  T.C.A. § 33-3-206 provides as follows:

 

IF AND ONLY IF

(1) a service recipient has communicated to a qualified mental health professional or behavior analyst an actual threat of bodily harm against a clearly identified victim, AND

(2) the professional, using the reasonable skill, knowledge, and care ordinarily possessed and exercised by the professional's specialty under similar circumstances, has determined or reasonably should have determined that the service recipient has the apparent ability to commit such an act and is likely to carry out the threat unless prevented from doing so,

THEN

(3) the professional shall take reasonable care to predict, warn of, or take precautions to protect the identified victim from the service recipient's violent behavior.

 

(emphasis added).  As you can see from the two different statutes, the new statute, T.C.A. § 33-3-210 provides an additional duty on the mental health practitioner to immediately inform local law enforcement of the threats.  Arguably, if a mental health practitioner does not notify law enforcement under T.C.A. § 33-3-210, then they could be held civilly responsible for failure to report the patient to local law enforcement.

 

Interestingly, T.C.A. § 33-3-210 is silent on whether this requirement to report to local law enforcement about the threat of serious bodily harm includes the threat of suicide.  This statute refers to threats of serious bodily harm to a “reasonably identifiable victim or victims”.  However, in one sense, the patient could be his own victim in the suicide context.  However, another statute should trump this argument depending on if the counseling center is a nonprofit company.  This is found in T.C.A. § 33-3-201(b).  This statute provides as follows:

 

(a) As used in this section, unless the context otherwise requires:

(1) “Counseling center” means any nonprofit service operated at least partially with volunteer assistance that provides counseling, assistance or guidance, either in person or by telephone, to persons with mental illness or serious emotional disturbance; and

(2) “Counselor” means any psychiatrist, psychologist, licensed psychologist with health service provider designation, certified or licensed marital and family therapist, certified or licensed professional counselor, certified or licensed social worker, or other professional trained in the field of psychiatry or psychology or any nonprofessional person acting under the guidance or supervision of the professionals.

(b) A counselor, while acting within the scope of responsibilities assigned by a counseling center, is not liable civilly or criminally for the suicide or attempted suicide of any person consulting the counselor.

 

(emphasis added).  As a result, mental health counselors that operate within a nonprofit service under this statute cannot be held civilly or criminally liable for a suicide or attempted to suicide to any person who consults the counselor.  Those practicing outside of a nonprofit agency could be held responsible for failing to report the threat of suicide under T.C.A. § 33-3-210.

 

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TAGS: Defenses, Torts, 2013 Tennessee Legislation, Tennessee Medical Malpractice/Health Care Liability, Miscellaneous
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Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.

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