HOUSE BILL NO. 394
AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2 AND SENATE AMENDMENT NO. 1'
AN ACT TO AMEND TITLE 16 Of THE DELAWARE CODE RELATING TO MENTAL HEALTH. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Title 16 of the Delaware Code by adding a new Chapter 54 which shall read as follows:
"CHAPTER 54. Mental Health Services Providers.
Except where the context indicates otherwise, as used in this chapter:
'Licensed psychologist' means 'licensed psychologist' as defined by Chapter 35 of Title 24.
'Licensed clinical social worker' means 'licensed clinical social worker' as defined by Chapter 39 of Title 24.
'Mental health services provider' means any physician, registered professional nurse, licensed counselor working in the field of mental health, psychologists and licensed clinical social workers as defined in this chapter.
'Patient' means any person with whom the mental health services provider has established a patient—care provider relationship.
'Physician' means 'physician' as defined by Chapter 17 of Title 24.
'licensed counselor working in the field of mental health' means 'licensed counselor working in the field of mental health' as defined by Chapter 30 of Title 24.
'Registered professional nurse' means 'registered professional nurse' as defined by Chapter 19 of Title 24.
§5402. Duty of mental health services providers to take precautions
against threatened patient violence; duty to warn.
(a) Except as provided in subsection (d) of this section, no cause of action shall lie against a mental health services provider, nor shall legal liability be imposed, for inability to prevent harm to person or property caused by a patient unless:
The patient has communicated to the mental health services provider an explicit and imminent threat to kill. or .seriously injure a clearly identified victim or victims, or to commit a specific violent act, or to destroy property under circumstances which could easily lead to serious personal injury or death, and the patient has an apparent intent and ability to carry out the threat; and
The mental health services provider fails to take the precautions specified in subsection (b) of this section in an attempt to prevent the threatened harm.
(b) Any duty owed by a mental health services provider to take reasonable precautions to prevent harm threatened by a patient is discharged, as a matter of law, if the mental health services provider, in a timely manner:
(1) Notifies a law enforcement agency near where the potential victim resides, or notifies a law enforcement agency near where the patient resides, and communicates the threat of death or serious bodily injury to the clearly identified victim or victims; or
(2) Arranges for the patient's immediate voluntary or involuntary hospitalization. or
Whenever a patient has explicitly threatened to cause serious harm to a person or property, or a mental health services provider otherwise concludes that the patient is likely to do so and the mental health services provider, for the purpose of reducing the risk of harm, discloses any confidential communication made by or relating to the patient, no cause of action, either criminal or civil, shall lie against the mental health services provider for making such disclosure.
Whenever a patient within the custodial responsibility of a hospital or other facility has made or makes threats of the kind dealt with in subsection (a) of this section, the mental health services provider and institution, agency, or hospital shall prior to such patient's discharge, consider and evaluate previously made threats made by such patient.Under such
circumstances, the mental health services provider may consider it prudent to inform appropriate law enforcement agencies or the previously threatened party as a measure of precaution. Subsections (a) and (c) of this section shall also apply to the hospital or facility.
Approved July 16, 1992.