Joseph L. Fink III, BSPharm, JD, DSC (Hon), FAPHA

All but 13 states have enacted legislation addressing the legal duty of a mental health professional to warn someone about whom a patient undergoing mental health counseling has made a threat.

This is the result of public policy leaders having to weigh the need for confidentiality surrounding the patient-practitioner relationship against the opportunity to enhance the safety of an individual about whom the threat was made.

Pharmacists may be positioned to hear such threats and need to decide whether follow-up is needed.

More than 40 years ago, a landmark case concerning the mental health professional’s obligation to protect the public’s safety started consideration of this issue. The case of 

Tarasoff v Regents of the University of California

, which rose to the California Supreme Court, led to the decision that a school psychotherapist was deemed to have the “duty to warn” when a patient threatened violence against another individual.

For psychiatrists and psychologists, the ruling has been hard to manage, as it can provide both negative and positive effects to patients’ care as well as have implications for their own liability. However, there are no clear, evidence-based criteria to evaluate potential danger that would warrant the psychiatrist or psychologist to warn the victim, leaving mental health professionals to evaluate the danger case by case.

case marked the beginning of a continuing conversation about mental health professionals’ responsibility to evaluate the danger posed by patients and to take reasonable steps to warn authorities and the victim before an incident occurs.

At the University of California, Berkeley, a graduate student named Prosenjit Poddar thought that he was in a relationship with Tatiana Tarasoff after a shared kiss. She expressed that she did not feel the same way.

Following the perceived rejection, Poddar started to see a campus psychologist to address his emotional crisis. While he was seeing the psychologist, he confessed plans to kill Tarasoff after she returned from a trip. The psychologist notified campus police, who detained the student briefly but released Poddar after he promised to stay away from Tarasoff.

Poddar stopped going to the therapy sessions. On the advice of his supervisor, the psychologist did not warn Tarasoff or continue to try to deter Poddar’s actions. Less than 2 months later, Poddar went to Tarasoff’s house and stabbed her to death.

The parents of the deceased young woman filed a lawsuit against the school, including the campus police, the psychologist, and the psychologist’s supervisor. The case made its way to the California Supreme Court. Two rulings emanated from the California courts, one in December 1974 focusing on the criminal charges against Poddar and one in 1976 focusing on the duty to warn. The result was issuance of the decision in 1976 that the psychotherapist had a duty to protect the intended victim from harm.1 In 1985, California adopted legislation establishing the duty to warn by statute if there is a belief or prediction that harm will occur. Since then, all but 13 states have passed legislation to attempt to define some type of duty to warn for mental health care providers within their states.

DISCERNING WHETHER TO BREACH CONFIDENTIALITY 

Following this decision, psychiatrists and psychologists were left to discern when it was appropriate to breach confidentiality to warn potential victims.3 There are 2 important considerations in this decision: first, the impact the disclosure will have on the patient’s care and second, the liability the providers undertake by choosing to disclose the threat to the potential victim or by choosing not to warn.

Some research shows that knowledge of the threat alone can do little to protect the victim and can occasionally escalate situations. By contrast, other studies concluded that the decision to warn has been successful in protecting the potential victim and improving the patient’s therapy efforts. More research is necessary to determine the effect on the patient’s care following the disclosure.

In addition, the psychiatrist is caught in an ethical dilemma whether to warn the potential victim because there are no evidence- based methods to clearly define whether a warning is necessary.

 Current models to determine the patient’s danger level have only been tested on small subsets of populations, including patients charged with criminal offenses or those in in-patient or prison settings. Without the efficacy of studies on larger population groups, there is no definitive way for psychotherapists to decide the danger risk of their patients. Health care providers are left to their own discretion, which can lead to lawsuits, no matter what they decide.

A further conundrum exists when a state such as Kentucky has a Supreme Court—created rule that the duty to warn applies to any health care provider present in the management of the case, not just the psychiatrist.

 Hence, providers trend to err on the side of caution to warn anyone who might be at risk, rather than err on the side of patient confidentiality. They have decided to prioritize the safety of the victims over patient confidentiality. This issue is a good example of how a high-profile court case can lead to action by the judicial branch that ultimately fosters legislative activity.  

 is a recent graduate of the University of Kentucky College of Health Sciences in Lexington with a major in human health sciences. She is now enrolled in the MD/MPH degree program at Southern Illinois University in Carbondale.

Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA

, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy.

Tarasoff v Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334 (Cal 1976).

Smith ML, Martin KP. Case: Tatiana Tarasoff — a duty to warn. Center for Practical Bioethics. Fall 1993. Accessed November 18, 2020. https://practicalbioethics.org/ case-studies-study-guide-the-case-of-tarasoff.html

Martin CM, Thomas PF. Duty to warn clarified. J Am Acad Psych Law Online. 2010;38(1):137-139.

Adi A, Mathbout M. The duty to protect: four decades after Tarasoff. 

. 2018;13(4):6-8. doi:10.1176/appi.ajp-rj.2018.130402

Ky. Rev. Stat. § 202A.400. Accessed November 19, 2020. https://casetext.com/ statute/kentucky-revised-statutes/title-17-economic-security-and-public-welfare/chapter- 202a-hospitalization-of-the-mentally-ill/section-202a400-duty-of-mental-healthprofessional- to-warn-intended-victim-of-patients-threat-of-violence

Articles

Landmark court case demonstrates that a balance exists between confidentiality and public safety.

Providers Have Duty to Warn About Patient Threats

These days, it is hard to pick up a professional pharmacy publication without seeing a reference to prescription drug monitoring programs (PDMPs) in various states.

These programs are key tools in states’ responses to the crises related to substance use disorders, as they monitor controlled substance prescriptions through an electronic database.

New York implemented the first PDMP in New York State in 1918, though the program was eliminated 3 years later. In 1939, California was the first state to establish a program that has been continuously operating since its implementation.

 From 1939 to 1999, just 15 states had enacted programs. However, from 2000 to 2012, an additional 30 states joined this group, leaving those without PDMP programs in the minority.

 By 2019, almost every state had joined the movement to harness the capabilities of information technology to help combat prescription opioid abuse, except Missouri.

 In 2016, Missouri ranked 19th in the nation for opioid overdose deaths, with 908 deaths that year.

 What is taking Missouri so long to jump on board?

Many residents of the Show-Me State worry about their privacy when it comes to this subject. Former Missouri State Senator Rob Schaaf openly opposed the creation of a PDMP in the state for years for this very reason, saying: “This is private medical information; the people of Missouri are not going to want to have everyone with a password to this program have eyes on that.”

The former senator tapped into this fear and used it to his advantage when trying to prevent passage of a PDMP bill. Although some bills have been proposed, they have all come up short when the votes in the legislature were tallied. As Schaaf’s term limit approached, concluding his service in office, he completely changed his mind on the issue. During the 2020 session there was a proposed bill for a voluntary PDMP. But an impasse arose in the House, and no bill was enacted.

Schaaf had said he would agree to a PDMP only if it were made mandatory, stating: “If they’re going to take our liberty away for something that’s never been proven to work, doctors have to use it.”

Although that shift in opinion is not exactly based on full support of the bill, it brings up a good point: What is the benefit of a mandatory over a voluntary PDMP? Although a voluntary program is better than nothing, research has shown that states with mandatory programs have better results. Voluntary programs are useful but, naturally, they are not required to be used. Health care providers must be dedicated to stopping the opioid epidemic and take the extra time to use the program. In states where a PDMP is mandatory, however, health care providers must access the program before prescribing or dispensing opioid drugs.

When one looks at the statistics, mandatory programs are without a doubt more effective. The Pew Charitable Trusts performed a study to measure this.

 In New York, for example, use of the database increased 100-fold in the 6 months following the mandate’s effective date. In addition, opioid prescriptions dropped by 8.7%, and buprenorphine prescriptions rose by approximately 12.8%. Missouri’s St Louis County is offering a voluntary PDMP. Although this is not ideal, the program does cover a large portion of the state’s population, despite the lack of a statewide program.

Many Missouri representatives and senators do support this important health care initiative.

Missouri State Representative Holly Rehder calls it a “lifesaving tool,” saying: “They’re collecting less information than [they are] in your electronic records. This is a medical process that we should be ashamed in Missouri that we have held…up.”

A timely issue somewhat parallel to this is the debate rooted in the coronavirus disease 2019 (COVID-19) pandemic and the resulting mandates by some levels of government that masks be worn in public. Such tension between protecting the health of the public collectively and the rights of the individual will come to the forefront with a variety of public health-related issues. It is unfortunate that health-related topics or issues often focus a spotlight on this conflict or tension between the best interests of the collective public and the rights of the individual. A PDMP mandate can present an identical issue.

It is a continuing battle, and hopefully, one that will soon be resolved. Pharmacists in Missouri can reach out to local representatives and senators to inform them of the tremendous benefits that a PDMP can bring. We hope that representatives and senators realize the great potential in such a statewide program and vote to implement one soon.

Prescription drug monitoring programs (PDMPs). CDC. Updated June 10, 2020. Accessed October 19, 2020. cdc.gov/drugoverdose/pdmp/states.html.

Technical Assistance Guide: history of prescription drug monitoring programs. Prescription Drug Monitoring Program Training and Technical Assistance Center. March 2018. Accessed October 19, 2020. pdmpassist.org/pdf/PDMP_admin/TAG_History_PDMPs_final_20180314.pdf

 Weber L. Why Missouri’s the last holdout on a statewide Rx monitoring program. 

 May 20, 2019. Accessed October 19, 2020. khn.org/news/why-missouris-the-last-holdout-on-a-statewide-rx-monitoring-program/.

 Missouri opioid data factsheet. Missouri Department of Health & Senior Services. 2017. Accessed October 19, 2020. health.mo.gov/safety/ems/more/pdf/opioid-data-fact-sheet.pdf.

Missouri: opioid-involved deaths and related harms. National Institute on Drug Abuse. April 3, 2020. Accessed October 19, 2020. drugabuse.gov/drug-topics/opioids/opioid-summaries-by-state/missouri-opioid-involved-deaths-related-harms.

Kennedy W. Opioid abuse epidemic catching attention of Missouri politicians, law enforcement. 

 February 7, 2016. Accessed October 19, 2020. 

news-leader.com/story/news/local/ozarks/2016/02/07/opioid-abuse-epidemic-catching-attention-missouri-politicians-law-enforcement/79983090/

Prescription drug monitoring programs. The Pew Charitable Trusts. December 2016. Accessed October 19, 2020. pewtrusts.org/~/media/assets/2016/12/prescription_drug_monitoring_programs.pdf.

Missouri Lacks a Prescription Drug Monitoring Program

When the employees of a chain community pharmacy refuse to honor prescriptions issued by a local physician, will the lawsuit for defamation filed by that practitioner succeed?

A physician, board certified in anesthesiology, was operating a pain management practice in a southern state. He was alerted by patients that staff members at a particular pharmacy chain were refusing to honor his prescriptions for opiate products.

The physician alleged that those patients who presented prescriptions from him for dispensing were told things such as, “This doctor is under investigation” or “We are no longer allowed to fill his prescriptions.”

The practitioner filed a lawsuit in state court against the pharmacy chain advancing 3 legal claims for recovery of monetary damages.

The first claim was that “actions and statements of the defendant pharmacy chain were published to third parties and were defamatory per se,” meaning automatically. The second count alleged that “the conduct of the defendant invaded the good name and privacy of the plaintiff and cast him in a false light in the community.” The third was that “the defendant published the defamatory information regarding the plaintiff physician with reckless disregard of the probability that doing so would cause emotional distress to the plaintiff.”

All 3 legal claims asserted were based on 3 allegations: the defendant pharmacy’s refusal to honor the prescriptions and dispense the medication, a statement by an employee that the pharmacy “was not allowed to fill plaintiff’s prescriptions,” and a statement by a staff member that the physician was “under investigation,” or some similar or substantively similar explanation.

The defendant pharmacy chain made a motion with the trial court judge for partial summary judgment on the first 2 allegations: the chain’s staff members’ refusal to honor prescriptions from the plaintiff and “any communication of that refusal to patients.”

Referring to the 2 collectively as “plaintiff’s refusal defamation claim,” the attorneys for the chain asserted that the chain’s “refusal to fill prescriptions written by the prescriber is not actionable” and “any communication of that refusal to patients is not defamatory.”

The trial court judge granted the defendant pharmacy chain’s motion for partial summary judgment.

The judge first emphasized that a party seeking summary judgment, or a judgment before it goes to a jury, must “demonstrate there is no genuine dispute as to any material fact.” He clarified that “an issue of material fact is genuine if a rational fact-finder could find in favor of either party on the issue.” To decide on such a motion, the judge is to “view the evidence in a light most favorable to the non-moving party.”

The judge concluded that the refusal to honor the prescriptions for dispensing was not defamatory because “the action of not filling prescriptions does not meet the prima facie elements of defamation.”

Turning to a state supreme court ruling in an earlier case, the judge adopted the definition of defamation as “making a false statement about someone to a third person in such a way as to harm the reputation of the person spoken of.” He continued by stating that “defamatory language is broadly construed as language that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” The judge pointed out that “the action of not filling a prescription is not defamatory language.”

The plaintiff was unable to point to any case in the state as precedent to indicate that “an action, like the refusal to fill a prescription, can form the basis of a defamation claim.”

The judge then turned to a discussion of the argument of the plaintiff physician’s attorneys that “failure to fill his patient’s prescription necessarily imputed illegal conduct, because pharmacists are required to fill prescriptions unless the pharmacist has a reason to know of some irregularity with the prescription.” The judge ruled that this was a “misunderstanding” of the law of the state. Pharmacy practice law in this jurisdiction does not create “an affirmative duty to fill prescriptions.” The judge concluded that “no rational finder of fact could find that by declining to fill a prescription, the defendant’s employees communicated to patients that the practitioner was a person involved in criminal activity.”

, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.

Prescriber Alleges Defamation Against Pharmacy Chain

The US Senate unanimously passed Jessie’s Law on August 3, 2017, and the House of Representatives passed it by voice vote on June 12, 2018.

 As the bill moved through the legislative process, Jessie’s Law became part of a larger legislative proposal called the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, also known as the SUPPORT Act.

 President Donald J. Trump signed the bill on October 24, 2018.

 The bill was designed to address concerns about a history of opioid addiction leading to breaches in patient confidentiality or to undertreated pain. To date, Jessie’s Law has not been publicly opposed, which might be expected due to mandatory patient consent and emphasis on a team approach to pain management.

Jessie’s Law is named after Jessica Grubb, a Michigan resident who struggled with addiction for 7 years after being sexually assaulted during her freshman year in college. She turned to heroin to escape the trauma and was in and out of rehabilitation programs 4 times—until she finally found recovery and began turning her life around.

Six months into her recovery, while training for a marathon, she injured her hip, which led to an infection and a hospitalization. Grubb and her family alerted hospital staff to her history of addiction, explaining that she was a recovering addict and should not be prescribed opioids. Grubb’s history was recorded in her patient chart on 8 separate occasions.

Unfortunately, that information never reached the discharging physician. Despite Grubb’s transparency about her past medical history, she was discharged with 50 oxycodone tablets and an intravenous port to increase medication access. Upon returning home, she fatally overdosed on March 2, 2016, at the age of 30.

This was not an isolated incident. In 2016, there were 63,632 deaths in the United States from drug overdose, with two-thirds involving an opioid.

Jessie’s Law aims to avoid such tragedies by noticeably and prominently displaying vital health history information, thus ensuring that health care providers have all the information necessary to provide medically appropriate care. The purpose of the legislation is to give notification about a history of addiction, with patient consent, in a fashion similar to a medication allergy. For example, a patient with a history of opioid addiction being discharged with a prescription for an opioid would prompt an alert to the provider the same way as a patient with a sulfa allergy being discharged with a prescription for Bactrim. This hard-stop alert brings attention to the discrepancy and allows health care providers access to potentially life-threatening information.

It should be noted that the SUPPORT Act includes dozens of different provisions, all aiming to end the opioid crisis. The act affects every sector of the health care industry, from family medical practices to health insurance companies. Most importantly, the act affects patients. Perhaps the most significant impact of the act is that it removes restrictions for Medicaid and Medicare patients in need of opioid addiction treatment and aims to stop the overprescribing of opioid medications.

Pharmacists as patient caregivers will be particularly affected by this bill, as they are ultimately responsible for patients’ medication management. Jessie’s Law assists pharmacists in ensuring safe medication therapy and more accurate care through an “alert” prompted by a patient’s medical history. By assisting pharmacists in their roles, this law can help maintain patient safety while fighting the opioid epidemic.

The goal of the legislation is to have the patient’s history of substance use disorder recorded in the patient’s chart, just as would be done with any other life-threatening health condition, such as, say, an allergy to penicillin. The legislation seeks to prevent tragedies like Grubb’s death by ensuring that when individuals are open about their past addiction, health professionals have access to all the relevant information needed to provide appropriate care and save lives.

The alerts incorporated into patients’ health records should prove valuable in assisting pharmacists as they work toward their overarching goal of helping patients obtain optimal outcomes from use of medications. The legislation attempts to address the fact that the patient’s chart is the resource that serves as a repository for a wide range of information regarding the patient’s care and challenges. That can be both a blessing, as it is hopefully a complete collection of information, and a curse, as it can contain so much information that important things get overlooked, as was the case for Grubb.

Jessie’s Law (S 581 / HR 5009, 115th Congress). SciPol. Updated June 14, 2018. Accessed August 12, 2020. 

http://sciencepolicy.duke.edu/content/jessies-law-s-581-115th-congress

SUPPORT Act for opioid recovery: effects on healthcare and clinicians. ICANotes

 January 4, 2019. Accessed August 12, 2020. 

https://www.icanotes.com/2019/01/04/support-act-for-opioid-recovery-effects-on-healthcare-and-clinicians/

Jessie’s Law, HR 5009, 115th Cong (2018). Accessed August 17, 2020. 

https://www.govtrack.us/congress/bills/115/hr5009

Burke MN. U.S. House passes bill named for Ann Arbor woman. 

 June 12, 2018. Accessed August 12, 2020. 

https://www.detroitnews.com/story/news/local/michigan/2018/06/12/congress-opioid-bills-jessie-law/693847002/

President Trump signs Walberg opioid legislation into law. News release. Congressman Tim Walberg. October 24, 2018. Accessed August 12, 2020. 

https://walberg.house.gov/media/press-releases/president-trump-signs-walberg-opioid-legislation-law

Scholl L, Seth P, Kariisa M, Wilson N, Baldwin G. Drug and opioid-involved overdose deaths —  United States, 2013 - 2017. 

 2018;67(5152):1419-1427. doi: 10.15585/mmwr.mm675152e1.