HOUSE BILL REPORT
HB 2672
As Amended by the Senate
Title: An act relating to limiting the liability of providers of treatment to high risk offenders.
Brief Description: Limiting the liability of providers of treatment to high risk offenders.
Sponsors: By Representatives Kirby, O'Brien, Ballasiotes, Morell, Darneille, Lovick and Kagi.
Brief History:
Committee Activity:
Judiciary: 2/7/02, 2/8/02 [DP].
Floor Activity:
Passed House: 2/14/02, 97-0.
Senate Amended.
Passed Senate: 3/2/02, 45-3.
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Brief Summary of Bill |
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$Provides that a mental health service provider or regional support network treating a dangerous mentally ill offender is not civilly liable for injury caused by the client unless the provider's or network's act constituted: (a) gross negligence; (b) willful or wanton misconduct; or (c) a breach of the duty to warn.
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HOUSE COMMITTEE ON JUDICIARY
Majority Report: Do pass. Signed by 8 members: Representatives Lantz, Chair; Hurst, Vice Chair; Boldt, Dickerson, Esser, Jarrett, Lovick and Lysen.
Minority Report: Without recommendation. Signed by 1 member: Representative Carrell, Ranking Minority Member.
Staff: Trudes Hutcheson (786‑7384).
Background:
Dangerous Mentally Ill Offenders (DMIO)
In 1999 the Legislature enacted the Dangerous Mentally Ill Offender Act. It requires the Department of Corrections (DOC) to identify offenders in confinement who: (1) are reasonably believed to be dangerous to themselves or others; and (2) have a mental disorder. In determining an offender's dangerousness, the DOC must consider behavior known to the department and factors, based on research, that are linked to an increased risk for dangerousness.
Prior to the offender's release, the DOC must create a team consisting of representatives from the DOC, regional support networks (RSN), appropriate divisions of the Department of Social and Health Services (DSHS), and other providers to develop a plan for delivery of treatment and support services to the offender upon release.
The team can propose any appropriate treatment plan including: (1) evaluation of the offender by the county designated mental health professional (CDMHP) for involuntary civil commitment for inpatient treatment; (2) department‑supervised community treatment; or (3) voluntary community mental health or chemical dependency treatment.
The CDMHP may also recommend a less restrictive alternative to total civil commitment, in which case the offender is required to appear at a facility for treatment.
Providers Subject to Civil Actions for Damages
One of the essential elements in an action for negligence that the plaintiff must show is the existence of a legal duty that the defendant owed to the plaintiff. A person owing a duty to another may be liable for negligence if the plaintiff shows that the person breached his or her duty, the breach was the proximate cause of the person's injuries, and that damages were incurred.
Generally, a person does not have a duty to protect others from the criminal acts of third persons. However, Washington courts have recognized an exception to this general rule where a special relationship exists between the defendant and either the third party or the foreseeable victim of the third party. Whether a person has a duty to protect another from the intentional acts of a third person, therefore, depends upon the relationship between the parties and the extent to which the third party's conduct was foreseeable.
Washington's supreme court has held that a therapist may incur a duty to take reasonable precautions to protect another person who might foreseeably be endangered by the patient's mental illness. Petersen v. State, 100 Wn.2d 421 (1983). Case law has suggested that reasonable precautions may include warning the person in danger or notifying law enforcement.
Gross negligence is negligence substantially and appreciably greater than ordinary negligence. Willful or wanton misconduct is intentional activity done in reckless disregard of the consequences under circumstances such that a reasonable person would know that substantial harm to another is highly likely.
Summary of Bill:
A mental health service provider or RSN acting in the course of the provider's or network's duties, is not liable for civil damages resulting from injury or death by a dangerous mentally ill offender who is a client, unless the act or omission of the provider or network constitutes:
(a) gross negligence;
(b) willful or wanton misconduct; or
(c)a breach of the duty to warn and protect from a client's threatened violent behavior if the client has communicated a serious threat of physical violence against a reasonably ascertainable victim.
The mental health service provider and network shall report an offender's expressions of intent to harm or other predatory behavior, whether or not there is a reasonably ascertainable victim, in progress reports to the courts and supervising entities assessing the progress and appropriateness of treatment.
A mental health service provider's or network's mere act of treating a dangerous mentally ill offender is not negligence, and the provider's or network's duty of care to the client is not altered.
The limited liability applies only to the conduct of mental health service providers and RSNs and does not apply to the conduct of the state.
EFFECT OF SENATE AMENDMENT(S):
The Senate amendment replaces ?mental health service provider@ with ?licensed service provider.@ Licensed service provider is defined in the RCW chapter (71.24) where the bill will be codified. ?Mental health service provider@ is not defined in that chapter.
Appropriation: None.
Fiscal Note: Not Requested.
Effective Date: Ninety days after adjournment of session in which bill is passed.
Testimony For: The goal of the Dangerous Mentally Ill Offender Act is to reduce offenders from re‑offending. Treatment helps stabilize these offenders. It was not until the Legislature labeled these people "dangerous mentally ill" did it become difficult for providers to get insurance. Community health providers have been treating this population of mentally ill people even before the Dangerous Mentally Ill Offender Act. It was the term "dangerous mentally ill offender" that made the provider's insurance premiums increase. Providers have not been able to renew their professional insurance liability policies, or they have experienced dramatic increases in their insurance premiums. Providers have paid an unfair price for their willingness to serve these clients. This bill helps to address the insurance issues and will ensure treatment to these mentally ill offenders. Lack of services for these people will have a negative impact on their transition into the community. It is difficult for the DOC to supervise these offenders in the community if these offenders cannot get the services and treatment they need. The providers are still liable for gross negligence and the failure to warn.
Testimony Against: None.
Testified: Representative Kirby, prime sponsor; Karl Brimner, Department of Social and Health Services; Jean Wessman, Washington State Association of Counties; Dave Stewart, Pierce County Regional Support Network; Cathy Gaylord, Washington Community Mental Health Council; Tom Saltrup, Department of Corrections; Victoria Roberts, Department of Corrections; and George Walk, Pierce County.