As Passed by the House 1
123rd General Assembly 4
Regular Session Am. H. B. No. 71 5
1999-2000 6
REPRESENTATIVES VESPER-VAN VYVEN-D.MILLER-KRUPINSKI- 7
LAWRENCE-MOTTLEY-CALLENDER-EVANS-HARTNETT-BENDER-SULLIVAN- 8
OPFER-OLMAN-HOOPS-JONES-PRINGLE-PATTON-HAINES-MAIER-TAYLOR-OGG- 9
TERWILLEGER-SUTTON-BRADING-HOLLISTER-PADGETT-SCHURING-SMITH-HARRIS- 10
METZGER-THOMAS-BATEMAN-YOUNG-ALLEN-BRITTON-KREBS-MYERS-O'BRIEN- 11
KRUPINSKI-BARRETT-WINKLER-WILLAMOWSKI-GARDNER-DePIERO 12
_________________________________________________________________ 14
A B I L L
To amend section 5122.34 and to enact section 17
2305.51 of the Revised Code with regard to 18
actions by mental health professionals and 19
organizations to predict, warn of, or take 20
precautions to prevent the violent behavior of 21
mental health clients or patients. 22
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 24
Section 1. That section 5122.34 be amended and section 27
2305.51 of the Revised Code be enacted to read as follows:
Sec. 2305.51. (A) (1) AS USED IN THIS SECTION: 29
(a) "CIVIL RIGHTS" HAS THE SAME MEANING AS IN SECTION 31
5122.301 OF THE REVISED CODE. 32
(b) "MENTAL HEALTH CLIENT OR PATIENT" MEANS AN INDIVIDUAL 34
WHO IS RECEIVING MENTAL HEALTH SERVICES FROM A MENTAL HEALTH 35
PROFESSIONAL OR ORGANIZATION.
(c) "MENTAL HEALTH ORGANIZATION" MEANS AN ORGANIZATION 37
THAT ENGAGES ONE OR MORE MENTAL HEALTH PROFESSIONALS TO PROVIDE 38
MENTAL HEALTH SERVICES TO ONE OR MORE MENTAL HEALTH CLIENTS OR 39
PATIENTS.
(d) "MENTAL HEALTH PROFESSIONAL" MEANS AN INDIVIDUAL WHO 41
IS LICENSED, CERTIFIED, OR REGISTERED UNDER THE REVISED CODE, OR 43
2
OTHERWISE AUTHORIZED IN THIS STATE, TO PROVIDE MENTAL HEALTH 44
SERVICES FOR COMPENSATION, REMUNERATION, OR OTHER PERSONAL GAIN. 45
(e) "MENTAL HEALTH SERVICE" MEANS A SERVICE PROVIDED TO AN 47
INDIVIDUAL OR GROUP OF INDIVIDUALS INVOLVING THE APPLICATION OF 48
MEDICAL, PSYCHIATRIC, PSYCHOLOGICAL, COUNSELING, SOCIAL WORK, OR 49
NURSING PRINCIPLES OR PROCEDURES TO EITHER OF THE FOLLOWING: 50
(i) THE ASSESSMENT, DIAGNOSIS, PREVENTION, TREATMENT, OR 53
AMELIORATION OF MENTAL, EMOTIONAL, PSYCHIATRIC, PSYCHOLOGICAL, OR 54
PSYCHOSOCIAL DISORDERS OR DISEASES, AS DESCRIBED IN THE MOST 55
RECENT EDITION OF THE DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL 57
DISORDERS PUBLISHED BY THE AMERICAN PSYCHIATRIC ASSOCIATION; 58
(ii) THE ASSESSMENT OR IMPROVEMENT OF MENTAL, EMOTIONAL, 61
PSYCHIATRIC, PSYCHOLOGICAL, OR PSYCHOSOCIAL ADJUSTMENT OR 62
FUNCTIONING, REGARDLESS OF WHETHER THERE IS A DIAGNOSABLE, 63
PRE-EXISTING DISORDER OR DISEASE.
(f) "KNOWLEDGEABLE PERSON" MEANS AN INDIVIDUAL WHO HAS 65
REASON TO BELIEVE THAT A MENTAL HEALTH CLIENT OR PATIENT HAS THE 66
INTENT AND ABILITY TO CARRY OUT AN EXPLICIT THREAT OF INFLICTING 67
IMMINENT AND SERIOUS PHYSICAL HARM TO OR CAUSING THE DEATH OF A 68
CLEARLY IDENTIFIABLE POTENTIAL VICTIM OR VICTIMS AND WHO IS 69
EITHER AN IMMEDIATE FAMILY MEMBER OF THE CLIENT OR PATIENT OR AN 70
INDIVIDUAL WHO OTHERWISE PERSONALLY KNOWS THE CLIENT OR PATIENT. 71
(2) FOR THE PURPOSE OF THIS SECTION, IN THE CASE OF A 73
THREAT TO A READILY IDENTIFIABLE STRUCTURE, "CLEARLY IDENTIFIABLE 74
POTENTIAL VICTIM" INCLUDES ANY POTENTIAL OCCUPANT OF THE 75
STRUCTURE.
(B) A MENTAL HEALTH PROFESSIONAL OR MENTAL HEALTH 77
ORGANIZATION MAY BE HELD LIABLE IN DAMAGES IN A CIVIL ACTION, OR 78
MAY BE MADE SUBJECT TO DISCIPLINARY ACTION BY AN ENTITY WITH 79
LICENSING OR OTHER REGULATORY AUTHORITY OVER THE PROFESSIONAL OR 80
ORGANIZATION, FOR SERIOUS PHYSICAL HARM OR DEATH RESULTING FROM 83
FAILING TO PREDICT, WARN OF, OR TAKE PRECAUTIONS TO PROVIDE 84
PROTECTION FROM THE VIOLENT BEHAVIOR OF A MENTAL HEALTH CLIENT OR 85
PATIENT, ONLY IF THE CLIENT OR PATIENT OR A KNOWLEDGEABLE PERSON 86
3
HAS COMMUNICATED TO THE PROFESSIONAL OR ORGANIZATION AN EXPLICIT 87
THREAT OF INFLICTING IMMINENT AND SERIOUS PHYSICAL HARM TO OR 88
CAUSING THE DEATH OF ONE OR MORE CLEARLY IDENTIFIABLE POTENTIAL 89
VICTIMS, THE PROFESSIONAL OR ORGANIZATION HAS REASON TO BELIEVE 90
THAT THE CLIENT OR PATIENT HAS THE INTENT AND ABILITY TO CARRY 91
OUT THE THREAT, AND THE PROFESSIONAL OR ORGANIZATION FAILS TO 92
TAKE ONE OR MORE OF THE FOLLOWING ACTIONS IN A TIMELY MANNER: 93
(1) EXERCISE ANY AUTHORITY THE PROFESSIONAL OR 95
ORGANIZATION POSSESSES TO HOSPITALIZE THE CLIENT OR PATIENT ON AN 97
EMERGENCY BASIS PURSUANT TO SECTION 5122.10 OF THE REVISED CODE; 98
(2) EXERCISE ANY AUTHORITY THE PROFESSIONAL OR 100
ORGANIZATION POSSESSES TO HAVE THE CLIENT OR PATIENT 101
INVOLUNTARILY OR VOLUNTARILY HOSPITALIZED UNDER CHAPTER 5122. OF 103
THE REVISED CODE;
(3) ESTABLISH AND UNDERTAKE A DOCUMENTED TREATMENT PLAN 105
THAT IS REASONABLY CALCULATED, ACCORDING TO APPROPRIATE STANDARDS 107
OF PROFESSIONAL PRACTICE, TO MINIMIZE THE POSSIBILITY THAT THE 108
CLIENT OR PATIENT WILL CARRY OUT THE THREAT;
(4) COMMUNICATE TO A LAW ENFORCEMENT AGENCY WITH 110
JURISDICTION IN THE AREA WHERE EACH POTENTIAL VICTIM RESIDES, 112
WHERE A STRUCTURE THREATENED BY A MENTAL HEALTH CLIENT OR PATIENT
IS LOCATED, OR WHERE THE MENTAL HEALTH CLIENT OR PATIENT RESIDES, 113
AND IF FEASIBLE, COMMUNICATE TO EACH POTENTIAL VICTIM OR A 115
POTENTIAL VICTIM'S PARENT OR GUARDIAN IF THE POTENTIAL VICTIM IS 116
A MINOR OR HAS BEEN ADJUDICATED INCOMPETENT, ALL OF THE FOLLOWING 117
INFORMATION:
(a) THE NATURE OF THE THREAT; 119
(b) THE IDENTITY OF THE MENTAL HEALTH CLIENT OR PATIENT 121
MAKING THE THREAT; 122
(c) THE IDENTITY OF EACH POTENTIAL VICTIM OF THE THREAT. 125
(C) ALL OF THE FOLLOWING APPLY WHEN A MENTAL HEALTH 128
PROFESSIONAL OR ORGANIZATION TAKES ONE OR MORE OF THE ACTIONS SET 129
FORTH IN DIVISIONS (B)(1) TO (4) OF THIS SECTION: 131
(1) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION SHALL 134
4
CONSIDER EACH OF THE ALTERNATIVES SET FORTH AND SHALL DOCUMENT 135
THE REASONS FOR CHOOSING OR REJECTING EACH ALTERNATIVE. 136
(2) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION MAY 138
GIVE SPECIAL CONSIDERATION TO THOSE ALTERNATIVES WHICH, 139
CONSISTENT WITH PUBLIC SAFETY, WOULD LEAST ABRIDGE THE RIGHTS OF 140
THE MENTAL HEALTH CLIENT OR PATIENT ESTABLISHED UNDER THE REVISED 142
CODE, INCLUDING THE RIGHTS SPECIFIED IN SECTIONS 5122.27 TO 143
5122.31 OF THE REVISED CODE.
(3) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION IS NOT 145
REQUIRED TO TAKE ANY ACTION THAT, IN THE EXERCISE OF REASONABLE 147
PROFESSIONAL JUDGMENT, WOULD ENDANGER THE PROFESSIONAL OR 148
ORGANIZATION, INCREASE THE DANGER TO A POTENTIAL VICTIM, OR 149
INCREASE THE DANGER TO THE MENTAL HEALTH CLIENT OR PATIENT. 150
(4) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION IS NOT 152
LIABLE IN DAMAGES IN A CIVIL ACTION, AND SHALL NOT BE MADE 153
SUBJECT TO DISCIPLINARY ACTION BY ANY ENTITY WITH LICENSING OR 154
OTHER REGULATORY AUTHORITY OVER THE PROFESSIONAL OR ORGANIZATION, 156
FOR DISCLOSING ANY CONFIDENTIAL INFORMATION ABOUT A MENTAL HEALTH 157
CLIENT OR PATIENT THAT IS DISCLOSED FOR THE PURPOSE OF TAKING ANY 158
OF THE ACTIONS.
(D) THE IMMUNITIES FROM CIVIL LIABILITY AND DISCIPLINARY 160
ACTION CONFERRED BY THIS SECTION ARE IN ADDITION TO AND NOT IN 162
LIMITATION OF ANY IMMUNITY CONFERRED ON A MENTAL HEALTH 163
PROFESSIONAL OR ORGANIZATION BY ANY OTHER SECTION OF THE REVISED 164
CODE OR BY JUDICIAL PRECEDENT. 165
(E) THIS SECTION DOES NOT AFFECT THE CIVIL RIGHTS OF A 167
MENTAL HEALTH CLIENT OR PATIENT UNDER OHIO OR FEDERAL LAW. 168
Sec. 5122.34. (A) Persons, including, but not limited to, 177
boards of alcohol, drug addiction, and mental health services and 179
community mental health agencies, acting in good faith, either 180
upon actual knowledge or information thought by them to be 181
reliable, who procedurally or physically assist in the
hospitalization or discharge, determination of appropriate 182
placement, or in judicial proceedings of a person under this 183
5
chapter, do not come within any criminal provisions, and are free 184
from any liability to the person hospitalized or to any other 185
person. No
(B) REGARDLESS OF WHETHER ANY AFFIRMATIVE ACTION HAS BEEN 188
TAKEN UNDER THIS CHAPTER WITH RESPECT TO A MENTAL HEALTH CLIENT 189
OR PATIENT AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 2305.51 OF 190
THE REVISED CODE, NO person shall be liable for any harm that 194
results to any other person as a result of failing to disclose
any confidential information about a THE mental health client OR 195
PATIENT, or failing to otherwise attempt to protect such other 197
person from harm by such client OR PATIENT. This 198
(C) THIS section applies to expert witnesses who testify 201
at hearings under this chapter.
(D) THE IMMUNITY FROM LIABILITY CONFERRED BY THIS SECTION 204
IS IN ADDITION TO AND NOT IN LIMITATION OF ANY IMMUNITY CONFERRED 205
BY ANY OTHER SECTION OF THE REVISED CODE OR BY JUDICIAL 207
PRECEDENT. 208
Section 2. That existing section 5122.34 of the Revised 211
Code is hereby repealed.
Section 3. In amending section 5122.34 and in enacting 213
section 2305.51 of the Revised Code, it is the intent of the 214
General Assembly to respectfully disagree with and supersede the 215
statutory construction holdings of the Ohio Supreme Court 216
relative to section 5122.34 of the Revised Code as set forth in 217
Estates of Morgan v. Fairfield Family Counseling Ctr. (1997), 77 220
Ohio St. 3d 284, under heading G of section I at 304-305, and, 221
thereby, to supersede the second, third, and fourth syllabus 222
paragraph holdings of the Court in that case. 223