As Passed by the Senate 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- 13
SENATORS ARMBRUSTER-DRAKE-BLESSING-FINGERHUT-SPADA-KEARNS-PRENTISS-
RAY-GARDNER-ESPY-WATTS 14
_________________________________________________________________ 16
A B I L L
To amend section 5122.34 and to enact section 19
2305.51 of the Revised Code with regard to 20
actions by mental health professionals and 21
organizations to predict, warn of, or take 22
precautions to prevent the violent behavior of 23
mental health clients or patients. 24
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 26
Section 1. That section 5122.34 be amended and section 29
2305.51 of the Revised Code be enacted to read as follows:
Sec. 2305.51. (A)(1) AS USED IN THIS SECTION: 31
(a) "CIVIL RIGHTS" HAS THE SAME MEANING AS IN SECTION 33
5122.301 OF THE REVISED CODE. 34
(b) "MENTAL HEALTH CLIENT OR PATIENT" MEANS AN INDIVIDUAL 36
WHO IS RECEIVING MENTAL HEALTH SERVICES FROM A MENTAL HEALTH 37
PROFESSIONAL OR ORGANIZATION.
(c) "MENTAL HEALTH ORGANIZATION" MEANS AN ORGANIZATION 39
THAT ENGAGES ONE OR MORE MENTAL HEALTH PROFESSIONALS TO PROVIDE 40
MENTAL HEALTH SERVICES TO ONE OR MORE MENTAL HEALTH CLIENTS OR 41
PATIENTS.
2
(d) "MENTAL HEALTH PROFESSIONAL" MEANS AN INDIVIDUAL WHO 43
IS LICENSED, CERTIFIED, OR REGISTERED UNDER THE REVISED CODE, OR 45
OTHERWISE AUTHORIZED IN THIS STATE, TO PROVIDE MENTAL HEALTH 46
SERVICES FOR COMPENSATION, REMUNERATION, OR OTHER PERSONAL GAIN. 47
(e) "MENTAL HEALTH SERVICE" MEANS A SERVICE PROVIDED TO AN 49
INDIVIDUAL OR GROUP OF INDIVIDUALS INVOLVING THE APPLICATION OF 50
MEDICAL, PSYCHIATRIC, PSYCHOLOGICAL, COUNSELING, SOCIAL WORK, OR 51
NURSING PRINCIPLES OR PROCEDURES TO EITHER OF THE FOLLOWING: 52
(i) THE ASSESSMENT, DIAGNOSIS, PREVENTION, TREATMENT, OR 55
AMELIORATION OF MENTAL, EMOTIONAL, PSYCHIATRIC, PSYCHOLOGICAL, OR 56
PSYCHOSOCIAL DISORDERS OR DISEASES, AS DESCRIBED IN THE MOST 57
RECENT EDITION OF THE DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL 59
DISORDERS PUBLISHED BY THE AMERICAN PSYCHIATRIC ASSOCIATION; 60
(ii) THE ASSESSMENT OR IMPROVEMENT OF MENTAL, EMOTIONAL, 63
PSYCHIATRIC, PSYCHOLOGICAL, OR PSYCHOSOCIAL ADJUSTMENT OR 64
FUNCTIONING, REGARDLESS OF WHETHER THERE IS A DIAGNOSABLE, 65
PRE-EXISTING DISORDER OR DISEASE.
(f) "KNOWLEDGEABLE PERSON" MEANS AN INDIVIDUAL WHO HAS 67
REASON TO BELIEVE THAT A MENTAL HEALTH CLIENT OR PATIENT HAS THE 68
INTENT AND ABILITY TO CARRY OUT AN EXPLICIT THREAT OF INFLICTING 69
IMMINENT AND SERIOUS PHYSICAL HARM TO OR CAUSING THE DEATH OF A 70
CLEARLY IDENTIFIABLE POTENTIAL VICTIM OR VICTIMS AND WHO IS 71
EITHER AN IMMEDIATE FAMILY MEMBER OF THE CLIENT OR PATIENT OR AN 72
INDIVIDUAL WHO OTHERWISE PERSONALLY KNOWS THE CLIENT OR PATIENT. 73
(2) FOR THE PURPOSE OF THIS SECTION, IN THE CASE OF A 75
THREAT TO A READILY IDENTIFIABLE STRUCTURE, "CLEARLY IDENTIFIABLE 76
POTENTIAL VICTIM" INCLUDES ANY POTENTIAL OCCUPANT OF THE 77
STRUCTURE.
(B) A MENTAL HEALTH PROFESSIONAL OR MENTAL HEALTH 79
ORGANIZATION MAY BE HELD LIABLE IN DAMAGES IN A CIVIL ACTION, OR 80
MAY BE MADE SUBJECT TO DISCIPLINARY ACTION BY AN ENTITY WITH 81
LICENSING OR OTHER REGULATORY AUTHORITY OVER THE PROFESSIONAL OR 82
ORGANIZATION, FOR SERIOUS PHYSICAL HARM OR DEATH RESULTING FROM 85
FAILING TO PREDICT, WARN OF, OR TAKE PRECAUTIONS TO PROVIDE 86
3
PROTECTION FROM THE VIOLENT BEHAVIOR OF A MENTAL HEALTH CLIENT OR 87
PATIENT, ONLY IF THE CLIENT OR PATIENT OR A KNOWLEDGEABLE PERSON 88
HAS COMMUNICATED TO THE PROFESSIONAL OR ORGANIZATION AN EXPLICIT 89
THREAT OF INFLICTING IMMINENT AND SERIOUS PHYSICAL HARM TO OR 90
CAUSING THE DEATH OF ONE OR MORE CLEARLY IDENTIFIABLE POTENTIAL 91
VICTIMS, THE PROFESSIONAL OR ORGANIZATION HAS REASON TO BELIEVE 92
THAT THE CLIENT OR PATIENT HAS THE INTENT AND ABILITY TO CARRY 93
OUT THE THREAT, AND THE PROFESSIONAL OR ORGANIZATION FAILS TO 94
TAKE ONE OR MORE OF THE FOLLOWING ACTIONS IN A TIMELY MANNER: 95
(1) EXERCISE ANY AUTHORITY THE PROFESSIONAL OR 97
ORGANIZATION POSSESSES TO HOSPITALIZE THE CLIENT OR PATIENT ON AN 99
EMERGENCY BASIS PURSUANT TO SECTION 5122.10 OF THE REVISED CODE; 100
(2) EXERCISE ANY AUTHORITY THE PROFESSIONAL OR 102
ORGANIZATION POSSESSES TO HAVE THE CLIENT OR PATIENT 103
INVOLUNTARILY OR VOLUNTARILY HOSPITALIZED UNDER CHAPTER 5122. OF 105
THE REVISED CODE;
(3) ESTABLISH AND UNDERTAKE A DOCUMENTED TREATMENT PLAN 107
THAT IS REASONABLY CALCULATED, ACCORDING TO APPROPRIATE STANDARDS 109
OF PROFESSIONAL PRACTICE, TO ELIMINATE THE POSSIBILITY THAT THE 110
CLIENT OR PATIENT WILL CARRY OUT THE THREAT, AND, CONCURRENT WITH
ESTABLISHING AND UNDERTAKING THE TREATMENT PLAN, INITIATE 111
ARRANGEMENTS FOR A SECOND OPINION RISK ASSESSMENT THROUGH A 112
MANAGEMENT CONSULTATION ABOUT THE TREATMENT PLAN WITH, IN THE 113
CASE OF A MENTAL HEALTH ORGANIZATION, THE CLINICAL DIRECTOR OF 114
THE ORGANIZATION, OR, IN THE CASE OF A MENTAL HEALTH PROFESSIONAL
WHO IS NOT ACTING AS PART OF A MENTAL HEALTH ORGANIZATION, ANY 115
MENTAL HEALTH PROFESSIONAL WHO IS LICENSED TO ENGAGE IN 116
INDEPENDENT PRACTICE;
(4) COMMUNICATE TO A LAW ENFORCEMENT AGENCY WITH 118
JURISDICTION IN THE AREA WHERE EACH POTENTIAL VICTIM RESIDES, 120
WHERE A STRUCTURE THREATENED BY A MENTAL HEALTH CLIENT OR PATIENT
IS LOCATED, OR WHERE THE MENTAL HEALTH CLIENT OR PATIENT RESIDES, 121
AND IF FEASIBLE, COMMUNICATE TO EACH POTENTIAL VICTIM OR A 123
POTENTIAL VICTIM'S PARENT OR GUARDIAN IF THE POTENTIAL VICTIM IS 124
4
A MINOR OR HAS BEEN ADJUDICATED INCOMPETENT, ALL OF THE FOLLOWING 125
INFORMATION:
(a) THE NATURE OF THE THREAT; 127
(b) THE IDENTITY OF THE MENTAL HEALTH CLIENT OR PATIENT 129
MAKING THE THREAT; 130
(c) THE IDENTITY OF EACH POTENTIAL VICTIM OF THE THREAT. 133
(C) ALL OF THE FOLLOWING APPLY WHEN A MENTAL HEALTH 136
PROFESSIONAL OR ORGANIZATION TAKES ONE OR MORE OF THE ACTIONS SET 137
FORTH IN DIVISIONS (B)(1) TO (4) OF THIS SECTION: 139
(1) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION SHALL 142
CONSIDER EACH OF THE ALTERNATIVES SET FORTH AND SHALL DOCUMENT 143
THE REASONS FOR CHOOSING OR REJECTING EACH ALTERNATIVE. 144
(2) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION MAY 146
GIVE SPECIAL CONSIDERATION TO THOSE ALTERNATIVES WHICH, 147
CONSISTENT WITH PUBLIC SAFETY, WOULD LEAST ABRIDGE THE RIGHTS OF 148
THE MENTAL HEALTH CLIENT OR PATIENT ESTABLISHED UNDER THE REVISED 150
CODE, INCLUDING THE RIGHTS SPECIFIED IN SECTIONS 5122.27 TO 151
5122.31 OF THE REVISED CODE.
(3) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION IS NOT 153
REQUIRED TO TAKE AN ACTION THAT, IN THE EXERCISE OF REASONABLE 155
PROFESSIONAL JUDGMENT, WOULD PHYSICALLY ENDANGER THE PROFESSIONAL 156
OR ORGANIZATION, INCREASE THE DANGER TO A POTENTIAL VICTIM, OR 157
INCREASE THE DANGER TO THE MENTAL HEALTH CLIENT OR PATIENT. 158
(4) THE MENTAL HEALTH PROFESSIONAL OR ORGANIZATION IS NOT 160
LIABLE IN DAMAGES IN A CIVIL ACTION, AND SHALL NOT BE MADE 161
SUBJECT TO DISCIPLINARY ACTION BY ANY ENTITY WITH LICENSING OR 162
OTHER REGULATORY AUTHORITY OVER THE PROFESSIONAL OR ORGANIZATION, 164
FOR DISCLOSING ANY CONFIDENTIAL INFORMATION ABOUT A MENTAL HEALTH 165
CLIENT OR PATIENT THAT IS DISCLOSED FOR THE PURPOSE OF TAKING ANY 166
OF THE ACTIONS.
(D) THE IMMUNITIES FROM CIVIL LIABILITY AND DISCIPLINARY 168
ACTION CONFERRED BY THIS SECTION ARE IN ADDITION TO AND NOT IN 170
LIMITATION OF ANY IMMUNITY CONFERRED ON A MENTAL HEALTH 171
PROFESSIONAL OR ORGANIZATION BY ANY OTHER SECTION OF THE REVISED 172
5
CODE OR BY JUDICIAL PRECEDENT. 173
(E) THIS SECTION DOES NOT AFFECT THE CIVIL RIGHTS OF A 175
MENTAL HEALTH CLIENT OR PATIENT UNDER OHIO OR FEDERAL LAW. 176
Sec. 5122.34. (A) Persons, including, but not limited to, 185
boards of alcohol, drug addiction, and mental health services and 187
community mental health agencies, acting in good faith, either 188
upon actual knowledge or information thought by them to be 189
reliable, who procedurally or physically assist in the
hospitalization or discharge, determination of appropriate 190
placement, or in judicial proceedings of a person under this 191
chapter, do not come within any criminal provisions, and are free 192
from any liability to the person hospitalized or to any other 193
person. No
(B) REGARDLESS OF WHETHER ANY AFFIRMATIVE ACTION HAS BEEN 196
TAKEN UNDER THIS CHAPTER WITH RESPECT TO A MENTAL HEALTH CLIENT 197
OR PATIENT AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 2305.51 OF 198
THE REVISED CODE, NO person shall be liable for any harm that 202
results to any other person as a result of failing to disclose
any confidential information about a THE mental health client OR 203
PATIENT, or failing to otherwise attempt to protect such other 205
person from harm by such client OR PATIENT. This 206
(C) THIS section applies to expert witnesses who testify 209
at hearings under this chapter.
(D) THE IMMUNITY FROM LIABILITY CONFERRED BY THIS SECTION 212
IS IN ADDITION TO AND NOT IN LIMITATION OF ANY IMMUNITY CONFERRED 213
BY ANY OTHER SECTION OF THE REVISED CODE OR BY JUDICIAL 215
PRECEDENT. 216
Section 2. That existing section 5122.34 of the Revised 219
Code is hereby repealed.
Section 3. In amending section 5122.34 and in enacting 221
section 2305.51 of the Revised Code, it is the intent of the 222
General Assembly to respectfully disagree with and supersede the 223
statutory construction holdings of the Ohio Supreme Court 224
relative to section 5122.34 of the Revised Code as set forth in 225
6
Estates of Morgan v. Fairfield Family Counseling Ctr. (1997), 77 228
Ohio St. 3d 284, under heading G of section I at 304-305, and, 229
thereby, to supersede the second, third, and fourth syllabus 230
paragraph holdings of the Court in that case. 231