As Reported by House Health, Retirement and Aging Committee 1
CORRECTED VERSION 2
123rd General Assembly 5
Regular Session Am. H. B. No. 71 6
1999-2000 7
REPRESENTATIVES VESPER-VAN VYVEN-D.MILLER-KRUPINSKI- 8
LAWRENCE-MOTTLEY-CALLENDER-EVANS-HARTNETT-BENDER-SULLIVAN- 9
OPFER-OLMAN-HOOPS-JONES-PRINGLE-PATTON-HAINES-MAIER-TAYLOR-OGG- 10
TERWILLEGER-SUTTON-BRADING-HOLLISTER-PADGETT-SCHURING-SMITH 11
_________________________________________________________________ 13
A B I L L
To amend section 5122.34 and to enact section 16
2305.51 of the Revised Code with regard to 17
actions by mental health professionals and 18
organizations to predict, warn of, or take 19
precautions to prevent the violent behavior of 20
mental health clients or patients. 21
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 23
Section 1. That section 5122.34 be amended and section 26
2305.51 of the Revised Code be enacted to read as follows:
Sec. 2305.51. (A) (1) AS USED IN THIS SECTION: 28
(a) "MENTAL HEALTH CLIENT OR PATIENT" MEANS AN INDIVIDUAL 31
WHO IS RECEIVING MENTAL HEALTH SERVICES FROM A MENTAL HEALTH 32
PROFESSIONAL OR ORGANIZATION.
(b) "MENTAL HEALTH ORGANIZATION" MEANS AN ORGANIZATION 34
THAT ENGAGES ONE OR MORE MENTAL HEALTH PROFESSIONALS TO PROVIDE 35
MENTAL HEALTH SERVICES TO ONE OR MORE MENTAL HEALTH CLIENTS OR 36
PATIENTS.
(c) "MENTAL HEALTH PROFESSIONAL" MEANS AN INDIVIDUAL WHO 38
IS LICENSED, CERTIFIED, OR REGISTERED UNDER THE REVISED CODE, OR 40
OTHERWISE AUTHORIZED IN THIS STATE, TO PROVIDE MENTAL HEALTH 41
SERVICES FOR COMPENSATION, REMUNERATION, OR OTHER PERSONAL GAIN. 42
(d) "MENTAL HEALTH SERVICE" MEANS A SERVICE PROVIDED TO AN 44
2
INDIVIDUAL OR GROUP OF INDIVIDUALS INVOLVING THE APPLICATION OF 45
MEDICAL, PSYCHIATRIC, PSYCHOLOGICAL, COUNSELING, SOCIAL WORK, OR 46
NURSING PRINCIPLES OR PROCEDURES TO EITHER OF THE FOLLOWING: 47
(i) THE ASSESSMENT, DIAGNOSIS, PREVENTION, TREATMENT, OR 50
AMELIORATION OF MENTAL, EMOTIONAL, PSYCHIATRIC, PSYCHOLOGICAL, OR 51
PSYCHOSOCIAL DISORDERS OR DISEASES, AS DESCRIBED IN THE MOST 52
RECENT EDITION OF THE "DIAGNOSTIC AND STATISTICAL MANUAL OF 53
MENTAL DISORDERS" PUBLISHED BY THE AMERICAN PSYCHIATRIC 55
ASSOCIATION;
(ii) THE ASSESSMENT OR IMPROVEMENT OF MENTAL, EMOTIONAL, 58
PSYCHIATRIC, PSYCHOLOGICAL, OR PSYCHOSOCIAL ADJUSTMENT OR 59
FUNCTIONING, REGARDLESS OF WHETHER THERE IS A DIAGNOSABLE, 60
PRE-EXISTING DISORDER OR DISEASE.
(e) "KNOWLEDGEABLE PERSON" MEANS AN INDIVIDUAL WHO HAS 62
REASON TO BELIEVE THAT A MENTAL HEALTH CLIENT OR PATIENT HAS THE 63
INTENT AND ABILITY TO CARRY OUT AN EXPLICIT THREAT OF INFLICTING 64
IMMINENT AND SERIOUS PHYSICAL HARM TO OR CAUSING THE DEATH OF A 65
CLEARLY IDENTIFIABLE POTENTIAL VICTIM OR VICTIMS AND WHO IS 66
EITHER AN IMMEDIATE FAMILY MEMBER OF THE CLIENT OR PATIENT OR AN 67
INDIVIDUAL WHO OTHERWISE PERSONALLY KNOWS THE CLIENT OR PATIENT. 68
(2) FOR THE PURPOSE OF THIS SECTION, IN THE CASE OF A 70
THREAT TO A READILY IDENTIFIABLE STRUCTURE, "CLEARLY IDENTIFIABLE 71
POTENTIAL VICTIM" INCLUDES ANY POTENTIAL OCCUPANT OF THE 72
STRUCTURE.
(B) A MENTAL HEALTH PROFESSIONAL OR MENTAL HEALTH 74
ORGANIZATION MAY BE HELD LIABLE IN DAMAGES IN A CIVIL ACTION, OR 75
MAY BE MADE SUBJECT TO DISCIPLINARY ACTION BY AN ENTITY WITH 76
LICENSING OR OTHER REGULATORY AUTHORITY OVER THE PROFESSIONAL OR 77
ORGANIZATION, FOR SERIOUS PHYSICAL HARM OR DEATH RESULTING FROM 80
FAILING TO PREDICT, WARN OF, OR TAKE PRECAUTIONS TO PROVIDE 81
PROTECTION FROM THE VIOLENT BEHAVIOR OF A MENTAL HEALTH CLIENT OR 82
PATIENT, ONLY IF THE CLIENT OR PATIENT OR A KNOWLEDGEABLE PERSON 83
HAS COMMUNICATED TO THE PROFESSIONAL OR ORGANIZATION AN EXPLICIT 84
THREAT OF INFLICTING IMMINENT AND SERIOUS PHYSICAL HARM TO OR 85
3
CAUSING THE DEATH OF ONE OR MORE CLEARLY IDENTIFIABLE POTENTIAL 86
VICTIMS, THE PROFESSIONAL OR ORGANIZATION HAS REASON TO BELIEVE 87
THAT THE CLIENT OR PATIENT HAS THE INTENT AND ABILITY TO CARRY 88
OUT THE THREAT, AND THE PROFESSIONAL OR ORGANIZATION FAILS TO 89
TAKE ONE OR MORE OF THE FOLLOWING ACTIONS IN A TIMELY MANNER: 90
(1) EXERCISE ANY AUTHORITY THE PROFESSIONAL OR 92
ORGANIZATION POSSESSES TO HOSPITALIZE THE CLIENT OR PATIENT ON AN 94
EMERGENCY BASIS PURSUANT TO SECTION 5122.10 OF THE REVISED CODE; 95
(2) EXERCISE ANY AUTHORITY THE PROFESSIONAL OR 97
ORGANIZATION POSSESSES TO HAVE THE CLIENT OR PATIENT 98
INVOLUNTARILY OR VOLUNTARILY HOSPITALIZED UNDER CHAPTER 5122. OF 100
THE REVISED CODE;
(3) ESTABLISH AND UNDERTAKE A DOCUMENTED TREATMENT PLAN 102
THAT IS REASONABLY CALCULATED, ACCORDING TO APPROPRIATE STANDARDS 104
OF PROFESSIONAL PRACTICE, TO MINIMIZE THE POSSIBILITY THAT THE 105
CLIENT OR PATIENT WILL CARRY OUT THE THREAT;
(4) COMMUNICATE TO A LAW ENFORCEMENT AGENCY WITH 107
JURISDICTION IN THE AREA WHERE EACH POTENTIAL VICTIM RESIDES, 109
WHERE A STRUCTURE THREATENED BY A MENTAL HEALTH CLIENT OR PATIENT
IS LOCATED, OR WHERE THE MENTAL HEALTH CLIENT OR PATIENT RESIDES, 110
AND IF FEASIBLE, COMMUNICATE TO EACH POTENTIAL VICTIM OR A 112
POTENTIAL VICTIM'S PARENT OR GUARDIAN IF THE POTENTIAL VICTIM IS 113
A MINOR OR HAS BEEN ADJUDICATED INCOMPETENT, ALL OF THE FOLLOWING 114
INFORMATION:
(a) THE NATURE OF THE THREAT; 116
(b) THE IDENTITY OF THE MENTAL HEALTH CLIENT OR PATIENT 118
MAKING THE THREAT; 119
(c) THE IDENTITY OF EACH POTENTIAL VICTIM OF THE THREAT. 122
(C) ALL OF THE FOLLOWING APPLY WHEN A MENTAL HEALTH 125
PROFESSIONAL OR ORGANIZATION TAKES ONE OR MORE OF THE ACTIONS SET 126
FORTH IN DIVISIONS (B)(1) TO (4) OF THIS SECTION: 128
(1) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION SHALL 131
CONSIDER EACH OF THE ALTERNATIVES SET FORTH AND SHALL DOCUMENT 132
THE REASONS FOR CHOOSING OR REJECTING EACH ALTERNATIVE. 133
4
(2) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION MAY 135
GIVE SPECIAL CONSIDERATION TO THOSE ALTERNATIVES WHICH, 136
CONSISTENT WITH PUBLIC SAFETY, WOULD LEAST ABRIDGE THE RIGHTS OF 137
THE MENTAL HEALTH CLIENT OR PATIENT ESTABLISHED UNDER THE REVISED 139
CODE, INCLUDING THE RIGHTS SPECIFIED IN SECTIONS 5122.27 TO 140
5122.31 OF THE REVISED CODE.
(3) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION IS NOT 142
REQUIRED TO TAKE ANY ACTION THAT, IN THE EXERCISE OF REASONABLE 144
PROFESSIONAL JUDGMENT, WOULD ENDANGER THE PROFESSIONAL OR 145
ORGANIZATION, INCREASE THE DANGER TO A POTENTIAL VICTIM, OR 146
INCREASE THE DANGER TO THE MENTAL HEALTH CLIENT OR PATIENT. 147
(4) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION IS NOT 149
LIABLE IN DAMAGES IN A CIVIL ACTION, AND SHALL NOT BE MADE 150
SUBJECT TO DISCIPLINARY ACTION BY ANY ENTITY WITH LICENSING OR 151
OTHER REGULATORY AUTHORITY OVER THE PROFESSIONAL OR ORGANIZATION, 153
FOR DISCLOSING ANY CONFIDENTIAL INFORMATION ABOUT A MENTAL HEALTH 154
CLIENT OR PATIENT THAT IS DISCLOSED FOR THE PURPOSE OF TAKING ANY 155
OF THE ACTIONS.
(D) THE IMMUNITIES FROM CIVIL LIABILITY AND DISCIPLINARY 157
ACTION CONFERRED BY THIS SECTION ARE IN ADDITION TO AND NOT IN 159
LIMITATION OF ANY IMMUNITY CONFERRED ON A MENTAL HEALTH 160
PROFESSIONAL OR ORGANIZATION BY ANY OTHER SECTION OF THE REVISED 161
CODE OR BY JUDICIAL PRECEDENT. 162
Sec. 5122.34. (A) Persons, including, but not limited to, 172
boards of alcohol, drug addiction, and mental health services and 174
community mental health agencies, acting in good faith, either 175
upon actual knowledge or information thought by them to be 176
reliable, who procedurally or physically assist in the
hospitalization or discharge, determination of appropriate 177
placement, or in judicial proceedings of a person under this 178
chapter, do not come within any criminal provisions, and are free 179
from any liability to the person hospitalized or to any other 180
person. No
(B) REGARDLESS OF WHETHER ANY AFFIRMATIVE ACTION HAS BEEN 183
5
TAKEN UNDER THIS CHAPTER WITH RESPECT TO A MENTAL HEALTH CLIENT 184
OR PATIENT AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 2305.51 OF 185
THE REVISED CODE, NO person shall be liable for any harm that 189
results to any other person as a result of failing to disclose
any confidential information about a THE mental health client OR 190
PATIENT, or failing to otherwise attempt to protect such other 192
person from harm by such client OR PATIENT. This 193
(C) THIS section applies to expert witnesses who testify 196
at hearings under this chapter.
(D) THE IMMUNITY FROM LIABILITY CONFERRED BY THIS SECTION 199
IS IN ADDITION TO AND NOT IN LIMITATION OF ANY IMMUNITY CONFERRED 200
BY ANY OTHER SECTION OF THE REVISED CODE OR BY JUDICIAL 202
PRECEDENT. 203
Section 2. That existing section 5122.34 of the Revised 206
Code is hereby repealed.
Section 3. In amending section 5122.34 and in enacting 208
section 2305.51 of the Revised Code, it is the intent of the 209
General Assembly to respectfully disagree with and supersede the 210
statutory construction holdings of the Ohio Supreme Court 211
relative to section 5122.34 of the Revised Code as set forth in 212
Estates of Morgan v. Fairfield Family Counseling Ctr. (1997), 77 215
Ohio St. 3d 284, under heading G of section I at 304-305, and, 216
thereby, to supersede the second, third, and fourth syllabus 217
paragraph holdings of the Court in that case. 218