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13-21-117. Civil liability - mental health providers - duty to warn - definitions.

Statute text

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

(a) "Mental health provider" means a physician, social worker, psychiatric nurse, psychologist, or other mental health professional, or a mental health hospital, community mental health center or clinic, institution, or their staff.

(b) "Psychiatric nurse" means a registered professional nurse as defined in section 12-38-103 (11), C.R.S., who by virtue of postgraduate education and additional nursing preparation has gained knowledge, judgment, and skill in psychiatric or mental health nursing.

(2) (a) A mental health provider is not liable for damages in any civil action for failure to warn or protect a specific person or persons, including those identifiable by their association with a specific location or entity, against the violent behavior of a person receiving treatment from the mental health provider, and any such mental health provider must not be held civilly liable for failure to predict such violent behavior except where the patient has communicated to the mental health provider a serious threat of imminent physical violence against a specific person or persons, including those identifiable by their association with a specific location or entity.

(b) When there is a duty to warn and protect under the provisions of paragraph (a) of this subsection (2), the mental health provider shall make reasonable and timely efforts to notify the person or persons, or the person or persons responsible for a specific location or entity, that is specifically threatened, as well as to notify an appropriate law enforcement agency or to take other appropriate action, including but not limited to hospitalizing the patient. A mental health provider is not liable for damages in any civil action for warning a specific person or persons, or a person or persons responsible for a specific location or entity, against or predicting the violent behavior of a person receiving treatment from the mental health provider.

(c) A mental health provider must not be subject to professional discipline when there is a duty to warn and protect pursuant to this section.

(3) The provisions of this section do not apply to the negligent release of a patient from any mental health hospital or ward or to the negligent failure to initiate involuntary seventy-two-hour treatment and evaluation after a personal patient evaluation determining that the person appears to have a mental illness and, as a result of the mental illness, appears to be an imminent danger to others.

History

Source: L. 86: Entire section added, p. 687, 1, effective May 22. L. 2006: Entire section amended, p. 1396, 37, effective August 7. L. 2014: Entire section R&RE, (HB 14-1271), ch. 109, p. 398, 1, effective April 7.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "The Duty to Warn and the Liability of Mental Health Care Providers", see 16 Colo. Law. 70 (1987). For article, "New Definitions of Therapist Confidentiality", see 18 Colo. Law. 251 (1989). For article, "Perreira v. Colorado -- A Psychiatrist's Duty to Protect Others", see 18 Colo. Law. 2323 (1989). For comment, "A Proposal to Adopt a Professional Judgment Standard of Care in Determining the Duty of a Psychiatrist to Third Persons", see 62 U. Colo. L. Rev. 237 (1991).

Annotator's note. The following annotations include cases decided under this section as it existed prior to the 2014 repeal and reenactment.

The language of the statute is broad and all-encompassing. It applies to "any civil action" for "failure to warn", and nothing in the statute supports plaintiff's claim that it focuses only on duties to take affirmative action. Marcellot v. Exempla, Inc., 2012 COA 200, __ P.3d __.

Limits on liability not confined to context of confidential, therapeutic relationship. Section applies to psychologist who evaluated individual even though psychologist did not treat the individual. Fredericks v. Jonsson, 609 F.3d 1096 (10th Cir. 2010).

The statute applies to inpatients. If the general assembly had intended the statute to apply only to outpatients, it could have used the words "a mental health outpatient's" instead of "a mental health patient's". Marcellot v. Exempla, Inc., 2012 COA 200, __ P.3d __.

Victim rights statute ( 24-4.1-301 to 24-4.1-304) does not support any expansion of liability of mental health providers because it imposes no duty on those providers or liability for damages. Fredericks v. Jonsson, 609 F.3d 1096 (10th Cir. 2010).

Exception to immunity for acts of hospitalized patients. Although immunity is expressly extended to mental health hospitals and their staff members who fail to warn or protect others against a mental health patient's violent propensities, tendencies, or generalized threats of potential violence, there is an exception where hospital is aware of hospitalized patient's aggressive behavior towards plaintiff. Halverson v. Pikes Peak Fam. Counseling, 795 P.2d 1352 (Colo. App. 1990).

Exception does not only apply when attacked victim communicates violent threat to hospital and is broad enough to apply when the violent patient's threats have been communicated to the health care provider. Halverson v. Pikes Peak Fam. Counseling, 851 P.2d 233 (Colo. App. 1992).

Mental health provider has a duty to warn a person or persons of patient's violent behavior only when patient himself predicts his violent behavior by communicating or expressing his threat to the mental health provider. Fredericks v. Jonsson, 609 F.3d 1096 (10th Cir. 2010).

A psychologist's immunity for warning a possible victim is not dependent upon a subsequent determination that the patient was in fact a threat. Otherwise, the immunity would have little value if the psychologist would be exposed to liability after the threat failed to manifest harm, which may be the result of such a warning. In addition, immunity is not discharged by hospitalization. McCarty v. Kaiser-Hill Co., L.L.C., 15 P.3d 1122 (Colo. App. 2000).

Section inapplicable to wrongful death action based upon alleged negligence in the treatment of a suicidal patient who later does commit suicide; instead, section contemplates and describes the duty to protect third persons from a mental health patient's behavior. Sheron v. Lutheran Med. Center, 18 P.3d 796 (Colo. App. 2000).