As Introduced 1
123rd General Assembly 4
Regular Session H. B. No. 71 5
1999-2000 6
REPRESENTATIVES VESPER-VAN VYVEN-MILLER-KRUPINSKI- 7
LAWRENCE-MOTTLEY-CALLENDER-EVANS-HARTNETT-BENDER-SULLIVAN- 8
OPFER-OLMAN-HOOPS-JONES-PRINGLE-PATTON-HAINES 9
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A B I L L
To amend section 5122.34 and to enact section 14
2305.51 of the Revised Code with regard to 15
actions by mental health professionals and 16
organizations to predict, warn of, or take 17
precautions to prevent the violent behavior of 18
mental health clients or patients. 19
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 21
Section 1. That section 5122.34 be amended and section 24
2305.51 of the Revised Code be enacted to read as follows:
Sec. 2305.51. (A) AS USED IN THIS SECTION: 26
(1) "MENTAL HEALTH CLIENT OR PATIENT" MEANS AN INDIVIDUAL 29
WHO IS RECEIVING MENTAL HEALTH SERVICES FROM A MENTAL HEALTH 30
PROFESSIONAL OR ORGANIZATION.
(2) "MENTAL HEALTH ORGANIZATION" MEANS AN ORGANIZATION 32
THAT ENGAGES ONE OR MORE MENTAL HEALTH PROFESSIONALS TO PROVIDE 33
MENTAL HEALTH SERVICES TO ONE OR MORE MENTAL HEALTH CLIENTS OR 34
PATIENTS.
(3) "MENTAL HEALTH PROFESSIONAL" MEANS AN INDIVIDUAL WHO 36
IS LICENSED, CERTIFIED, OR REGISTERED UNDER THE REVISED CODE, OR 38
OTHERWISE AUTHORIZED IN THIS STATE, TO PROVIDE MENTAL HEALTH 39
SERVICES FOR COMPENSATION, REMUNERATION, OR OTHER PERSONAL GAIN. 40
(4) "MENTAL HEALTH SERVICE" MEANS A SERVICE PROVIDED TO AN 42
INDIVIDUAL OR GROUP OF INDIVIDUALS INVOLVING THE APPLICATION OF 43
MEDICAL, PSYCHIATRIC, PSYCHOLOGICAL, COUNSELING, SOCIAL WORK, OR 44
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NURSING PRINCIPLES OR PROCEDURES TO EITHER OF THE FOLLOWING: 45
(a) THE ASSESSMENT, DIAGNOSIS, PREVENTION, TREATMENT, OR 48
AMELIORATION OF MENTAL, EMOTIONAL, PSYCHIATRIC, PSYCHOLOGICAL, OR 49
PSYCHOSOCIAL DISORDERS OR DISEASES, AS DESCRIBED IN THE MOST 50
RECENT EDITION OF THE "DIAGNOSTIC AND STATISTICAL MANUAL OF 51
MENTAL DISORDERS" PUBLISHED BY THE AMERICAN PSYCHIATRIC 53
ASSOCIATION;
(b) THE ASSESSMENT OR IMPROVEMENT OF MENTAL, EMOTIONAL, 56
PSYCHIATRIC, PSYCHOLOGICAL, OR PSYCHOSOCIAL ADJUSTMENT OR 57
FUNCTIONING, REGARDLESS OF WHETHER THERE IS A DIAGNOSABLE, 58
PRE-EXISTING DISORDER OR DISEASE.
(5) "KNOWLEDGEABLE PERSON" MEANS AN INDIVIDUAL WHO HAS 60
REASON TO BELIEVE THAT A MENTAL HEALTH CLIENT OR PATIENT HAS THE 61
INTENT AND ABILITY TO CARRY OUT AN EXPLICIT THREAT OF INFLICTING 62
IMMINENT AND SERIOUS PHYSICAL HARM TO OR CAUSING THE DEATH OF A 63
CLEARLY IDENTIFIABLE POTENTIAL VICTIM OR VICTIMS AND WHO IS 64
EITHER AN IMMEDIATE FAMILY MEMBER OF THE CLIENT OR PATIENT OR AN 65
INDIVIDUAL WHO OTHERWISE PERSONALLY KNOWS THE CLIENT OR PATIENT. 66
(B) A MENTAL HEALTH PROFESSIONAL OR MENTAL HEALTH 68
ORGANIZATION MAY BE HELD LIABLE IN DAMAGES IN A CIVIL ACTION, OR 69
MAY BE MADE SUBJECT TO DISCIPLINARY ACTION BY AN ENTITY WITH 70
LICENSING OR OTHER REGULATORY AUTHORITY OVER THE PROFESSIONAL OR 71
ORGANIZATION, FOR SERIOUS PHYSICAL HARM OR DEATH RESULTING FROM 74
FAILING TO PREDICT, WARN OF, OR TAKE PRECAUTIONS TO PROVIDE 75
PROTECTION FROM THE VIOLENT BEHAVIOR OF A MENTAL HEALTH CLIENT OR 76
PATIENT, ONLY IF THE CLIENT OR PATIENT OR A KNOWLEDGEABLE PERSON 77
HAS COMMUNICATED TO THE PROFESSIONAL OR ORGANIZATION AN EXPLICIT 78
THREAT OF INFLICTING IMMINENT AND SERIOUS PHYSICAL HARM TO OR 79
CAUSING THE DEATH OF ONE OR MORE CLEARLY IDENTIFIABLE POTENTIAL 80
VICTIMS, THE PROFESSIONAL OR ORGANIZATION HAS REASON TO BELIEVE 81
THAT THE CLIENT OR PATIENT HAS THE INTENT AND ABILITY TO CARRY 82
OUT THE THREAT, AND THE PROFESSIONAL OR ORGANIZATION FAILS TO 83
TAKE ONE OR MORE OF THE FOLLOWING ACTIONS IN A TIMELY MANNER: 84
(1) EXERCISE ANY AUTHORITY THE PROFESSIONAL OR 86
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ORGANIZATION POSSESSES TO HOSPITALIZE THE CLIENT OR PATIENT ON AN 88
EMERGENCY BASIS PURSUANT TO SECTION 5122.10 OF THE REVISED CODE; 89
(2) EXERCISE ANY AUTHORITY THE PROFESSIONAL OR 91
ORGANIZATION POSSESSES TO HAVE THE CLIENT OR PATIENT 92
INVOLUNTARILY OR VOLUNTARILY HOSPITALIZED UNDER CHAPTER 5122. OF 94
THE REVISED CODE;
(3) ESTABLISH AND UNDERTAKE A DOCUMENTED TREATMENT PLAN 96
THAT IS REASONABLY CALCULATED, ACCORDING TO APPROPRIATE STANDARDS 98
OF PROFESSIONAL PRACTICE, TO MINIMIZE THE POSSIBILITY THAT THE 99
CLIENT OR PATIENT WILL CARRY OUT THE THREAT;
(4) COMMUNICATE TO A LAW ENFORCEMENT AGENCY WITH 101
JURISDICTION IN THE AREA WHERE EACH POTENTIAL VICTIM RESIDES OR 103
WHERE THE MENTAL HEALTH CLIENT OR PATIENT RESIDES, AND IF 104
FEASIBLE, COMMUNICATE TO EACH POTENTIAL VICTIM OR A POTENTIAL 105
VICTIM'S PARENT OR GUARDIAN IF THE POTENTIAL VICTIM IS A MINOR OR 106
HAS BEEN ADJUDICATED INCOMPETENT, ALL OF THE FOLLOWING 107
INFORMATION:
(a) THE NATURE OF THE THREAT; 109
(b) THE IDENTITY OF THE MENTAL HEALTH CLIENT OR PATIENT 111
MAKING THE THREAT; 112
(c) THE IDENTITY OF EACH POTENTIAL VICTIM OF THE THREAT. 115
(C) ALL OF THE FOLLOWING APPLY WHEN A MENTAL HEALTH 118
PROFESSIONAL OR ORGANIZATION TAKES ONE OR MORE OF THE ACTIONS SET 119
FORTH IN DIVISIONS (B)(1) TO (4) OF THIS SECTION: 121
(1) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION SHALL 124
CONSIDER EACH OF THE ALTERNATIVES SET FORTH AND SHALL DOCUMENT 125
THE REASONS FOR CHOOSING OR REJECTING EACH ALTERNATIVE. 126
(2) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION MAY 128
GIVE SPECIAL CONSIDERATION TO THOSE ALTERNATIVES WHICH, 129
CONSISTENT WITH PUBLIC SAFETY, WOULD LEAST ABRIDGE THE RIGHTS OF 130
THE MENTAL HEALTH CLIENT OR PATIENT ESTABLISHED UNDER THE REVISED 132
CODE, INCLUDING THE RIGHTS SPECIFIED IN SECTIONS 5122.27 TO 133
5122.31 OF THE REVISED CODE.
(3) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION IS NOT 135
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REQUIRED TO TAKE ANY ACTION THAT, IN THE EXERCISE OF REASONABLE 137
PROFESSIONAL JUDGMENT, WOULD ENDANGER THE PROFESSIONAL OR 138
ORGANIZATION, INCREASE THE DANGER TO A POTENTIAL VICTIM, OR 139
INCREASE THE DANGER TO THE MENTAL HEALTH CLIENT OR PATIENT. 140
(4) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION IS NOT 142
LIABLE IN DAMAGES IN A CIVIL ACTION, AND SHALL NOT BE MADE 143
SUBJECT TO DISCIPLINARY ACTION BY ANY ENTITY WITH LICENSING OR 144
OTHER REGULATORY AUTHORITY OVER THE PROFESSIONAL OR ORGANIZATION, 146
FOR DISCLOSING ANY CONFIDENTIAL INFORMATION ABOUT A MENTAL HEALTH 147
CLIENT OR PATIENT THAT IS DISCLOSED FOR THE PURPOSE OF TAKING ANY 148
OF THE ACTIONS.
(D) THE IMMUNITIES FROM CIVIL LIABILITY AND DISCIPLINARY 150
ACTION CONFERRED BY THIS SECTION ARE IN ADDITION TO AND NOT IN 152
LIMITATION OF ANY IMMUNITY CONFERRED ON A MENTAL HEALTH 153
PROFESSIONAL OR ORGANIZATION BY ANY OTHER SECTION OF THE REVISED 154
CODE OR BY JUDICIAL PRECEDENT. 155
Sec. 5122.34. (A) Persons, including, but not limited to, 165
boards of alcohol, drug addiction, and mental health services and 167
community mental health agencies, acting in good faith, either 168
upon actual knowledge or information thought by them to be 169
reliable, who procedurally or physically assist in the
hospitalization or discharge, determination of appropriate 170
placement, or in judicial proceedings of a person under this 171
chapter, do not come within any criminal provisions, and are free 172
from any liability to the person hospitalized or to any other 173
person. No
(B) REGARDLESS OF WHETHER ANY AFFIRMATIVE ACTION HAS BEEN 176
TAKEN UNDER THIS CHAPTER WITH RESPECT TO A MENTAL HEALTH CLIENT 177
OR PATIENT AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 2305.51 OF 178
THE REVISED CODE, NO person shall be liable for any harm that 182
results to any other person as a result of failing to disclose
any confidential information about a THE mental health client OR 183
PATIENT, or failing to otherwise attempt to protect such other 185
person from harm by such client OR PATIENT. This 186
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(C) THIS section applies to expert witnesses who testify 189
at hearings under this chapter.
(D) THE IMMUNITY FROM LIABILITY CONFERRED BY THIS SECTION 192
IS IN ADDITION TO AND NOT IN LIMITATION OF ANY IMMUNITY CONFERRED 193
BY ANY OTHER SECTION OF THE REVISED CODE OR BY JUDICIAL 195
PRECEDENT. 196
Section 2. That existing section 5122.34 of the Revised 199
Code is hereby repealed.
Section 3. In amending section 5122.34 and in enacting 201
section 2305.51 of the Revised Code, it is the intent of the 202
General Assembly to respectfully disagree with and supersede the 203
statutory construction holdings of the Ohio Supreme Court 204
relative to section 5122.34 of the Revised Code as set forth in 205
Estates of Morgan v. Fairfield Family Counseling Ctr. (1997), 77 208
Ohio St. 3d 284, under heading G of section I at 304-305, and, 209
thereby, to supersede the second, third, and fourth syllabus 210
paragraph holdings of the Court in that case. 211