Emergency departments have long filled the gaps created by a lack of access to outpatient mental and physical health care. As the social safety net continues to disintegrate from the combined pressures of an ongoing pandemic, escalating workforce shortages, and generations of governmental neglect, we can expect health care's responsibilities to proliferate in new and different ways.
It is important that we recognize and anticipate the legal and regulatory pressures that are expanding our accountabilities so we can protect ourselves and our systems and advocate for sensible restrictions on the unsustainable obligations being placed on our EDs. With this in mind, we must try to unpack the overlapping and intertwined responsibilities of the health care and justice system with respect to public safety.
Police have touted the motto “to protect and to serve” since 1963. As physician responsibilities have broadened, case law has demonstrated that this aspiration is better fulfilled by the health care system.
The most relevant and most widely recognized case law codifying the legal duty of physicians to protect and serve arose in 1976 with Tarasoff v. Regents of the University of California, in which a patient threatened to harm Tatiana Tarasoff while in session with his psychiatrist.
The psychiatrist reported this threat to campus police, who detained but ultimately released the patient who went on to murder Ms. Tarasoff. The treating physician was found negligent for failing to detain the patient and failing to warn Ms. Tarasoff about the threat against her. Informing the police did not fulfill the provider's duty to protect.
Physicians' obligation to prevent harm has been expanded by subsequent cases and state legislation. Volk v. DeMeerleer addressed the case of Jan DeMeerleer, a psychiatric patient who murdered his ex-partner and her child, who had never been identified as targets. (Justia. http://bit.ly/3Gc5pQ9.)
This ruling expanded mental health clinicians' responsibility to cover any individual harmed by a patient if the provider could have foreseen the harm, even if the patient does not threaten a specific target. State laws and obligations regarding the duty to warn now vary (Am J Psychiatry. 2018;13:6; http://bit.ly/3tqXFT6), but most states have required or permissive duty to warn any known victim of threatened violence.
As the physician's responsibility to prevent harm grows, cases like Deshaney v. Winnebago County have established that the state (and correspondingly, the police) does not have a special duty to prevent harm or provide protection to individuals with whom they do not have a special relationship—who are not in their custody—against harms that are not created by the state. (Casebriefs. http://bit.ly/3X1r2bV.)
Cases like Castle Rock v. Gonzalez go further by clarifying that the state is not required to enforce its own restraining orders against violent individuals. (Casebriefs. http://bit.ly/3tmYXym.) Police are not obligated to prevent harm, nor do they function under a justice code that allows them to do so. Under due process, the state can prosecute crimes that have happened, but the recourse for prevention is limited. The driving premise of our criminal justice and policing is retaliatory, with the hope that punishment will deter future conduct.
Physicians are legally required in some states to report medical problems like newly diagnosed epilepsy (which may cause harm to others if a patient continues to drive, has a seizure, and causes a crash) to the Department of Motor Vehicles or injuries from firearms and other violent means to the police. (Northeast Regional Epilepsy Group. http://bit.ly/3DVeev6; Victim Rights Law Center: Mandatory Reporting of Non-Accidental Injuries. May 2014; http://bit.ly/3UPysxg.)
These mandates exist in the name of promoting public safety and preventing harm, but are often at the expense of patient privacy, autonomy, and rapport. (J Am Coll Emerg Physicians Open. 2020;1:38; http://bit.ly/3E2GHzg.)
A Tertiary Responsibility
Police are not obligated to predict and prevent future crimes, but we are. Our primary duty is to do no harm and to ensure that our patients have the best outcome possible. The legal system and social expectations now add and enforce another responsibility to ensure that no foreseeable harm befalls other individuals because of our patients.
The legal definition of preventable harm is poorly described, as are our strategies for prevention. The social expectation of our responsibility (and ability) to prevent harm is all-encompassing. We are regarded as the end-all solution for any threat that arises, regardless of its medical etiology or our ability to intervene.
We have historically regarded the police as partners in our efforts to protect and serve. In reality, the systems in which we operate do not empower police to operate as our partners, or discharge our liability, in promoting public safety.
To protect ourselves and our patients, we must maintain awareness of the legal pressures and responsibilities imposed upon us and communicate clearly where and why we are unable to fulfill these responsibilities. Changing public perception and legal liability begins with our awareness of the pressures that face us.
Resources for EPs
- A list of regulations by state of a physician's responsibility for reporting patients with seizures to the Department of Motor Vehicles: https://bit.ly/3DVeev6.
- A state-by-state listing of mandatory reporting on nonaccidental injuries: https://bit.ly/3UPysxg.
- A listing by state of mental health professionals' duty to warn: http://bit.ly/3Ed6uou.
Dr. Haseldenis an emergency physician in the Washington, DC, region and the acting communications fellow at the AFFIRM Institute, a program dedicated to reducing firearm injuries in the United States through health-based, nonpartisan approaches. Follow her on Twitter@HaseldenMD. Dr. Barsottiis the program director of AFFIRM at the Aspen Institute. He is also a community practice emergency physician at Berkshire Medical Center in Pittsfield, MA, and a certified 4-H youth rifle safety instructor. Read his past columns athttp://bit.ly/StandingAFFIRM, and follow him on Twitter@ChrisBarsottiMD. Find more information about AFFIRM athttps://affirmresearch.org, and follow the foundation on Twitter@ResearchAFFIRM.