Changes To NJSA Mental Health Immunity Act

May 22nd, 2019
New Jersey law firm

Attention NJ Mental Health Professionals!  

Be aware of recent revisions to NJ’s Duty to Warn Statute, NJSA 2A:62A-16

Our mental health professional clients often consult with us regarding whether they have incurred a duty to warn or protect third parties from threats made by their clients.

We want them to be aware that New Jersey’s statute governing this topic, NJSA2A:62A-16 (“the Statute”), was amended effective June 13, 2018.  Every New Jersey licensed psychologist, psychiatrist, physician, nurse, clinical social worker and marriage and family therapist needs to be aware of these important changes.

First, let’s review the Statute:

The Statute provides as follows:

            2A:62A-16. Health, mental health, and marriage and family therapy professionals;            immunity from liability; duty to warn; disclosure of privileged communications

            a. Any person who is licensed in the State of New Jersey to practice psychology,   psychiatry, medicine, nursing, clinical social work, or marriage and family therapy,     whether or not compensation is received or expected, is immune from any civil liability       for a patient’s violent act against another person or against himself unless the practitioner           has incurred a duty to warn and protect the potential victim as set forth in subsection b. of          this section and fails to discharge that duty as set forth in subsection c. of this section.

This section raises the obvious question “When does a covered professional incur a duty to warn?”  Section b of the Statue provides the answer:

            b. A duty to warn and protect is incurred when the following conditions exist:

            (1) The patient has communicated to that practitioner a threat of imminent, serious            physical violence against a readily identifiable individual or against himself and the            circumstances are such that a reasonable professional in the practitioner’s area of            expertise would believe the patient intended to carry out the threat; or

            (2) The circumstances are such that a reasonable professional in the practitioner’s area of expertise would believe the patient intended to carry out an act of imminent, serious             physical violence against a readily identifiable individual or against himself.

Assuming the covered professional has incurred a duty to warn under section b, how does that professional discharge that duty?  Section c provides a variety of ways to do so:

            c. A licensed practitioner of psychology, psychiatry, medicine, nursing, clinical social       work or marriage and family therapy shall discharge the duty to warn and protect as set      forth in subsection b. of this section by doing any one or more of the following:

            (1) Arranging for the patient to be admitted voluntarily to a psychiatric unit of a general   hospital, a short-term care facility, a special psychiatric hospital or a psychiatric facility,        under the provisions of P.L.1987, c. 116 (C.30:4-27.1 et seq.);

            (2) Initiating procedures for involuntary commitment to treatment of the patient to an       outpatient treatment provider, a short-term care facility, a special psychiatric hospital or a      psychiatric facility, under the provisions of P.L.1987, c. 116 (C.30:4-27.1 et seq.);

            (3) Advising a local law enforcement authority of the patient’s threat and the identity of    the intended victim;

            (4) Warning the intended victim of the threat, or, in the case of an intended victim who is under the age of 18, warning the parent or guardian of the intended victim; or

            (5) If the patient is under the age of 18 and threatens to commit suicide or bodily injury    upon himself, warning the parent or guardian of the patient.

Note that if a covered professional has discharged his/her duty to warn and protect by taking one or more of the steps set forth in section c, above, he/she is granted immunity from civil liability with respect to the disclosure of that information, as set forth in section d:

            d. A practitioner who is licensed in the State of New Jersey to practice psychology,           psychiatry, medicine, nursing, clinical social work or marriage and family therapy who,          in complying with subsection c. of this section, discloses a privileged communication, is         immune from civil liability in regard to that disclosure.

The recent amendment to the Statute is set forth in section e.  It provides additional notification steps that the covered professional must take to discharge their duty to warn and protect and to enjoy immunity from civil liability for said disclosure:

            e. In addition to complying with subsection c. of this section, a licensed practitioner shall notify the chief law enforcement officer of the municipality in which the patient resides        or the Superintendent of State Police if the patient resides in a municipality that does not      have a full-time police department that a duty to warn and protect has been incurred with        respect to the patient and shall provide to the chief law enforcement officer or            superintendent, as appropriate, the patient’s name and other non-clinical identifying       information. The chief law enforcement officer or superintendent, as appropriate, shall     use that information to ascertain whether the patient has been issued a firearms purchaser        identification card, permit to purchase a handgun, or any other permit or license           authorizing possession of a firearm.(emphasis added)

N.J. Stat. Ann. § 2A:62A-16.

To repeat, the requirement set forth in part e, above, is an additional step the covered professional must take to discharge their duty to warn or protect under the Statute.  The covered professional must still take one or more of the 5 actions outlined in part c of the Statute.

While the Statute, unsurprisingly, does not provide details regarding how a covered professional should proceed under section e, we would offer the following suggestions for consideration:

  1. Call the police department’s main number.  Do not contact them via e-mail.
  •  When calling, identify yourself as a treating mental health professional who has incurred a Duty to Warn or Protect.
  • Ask to speak with the chief law enforcement officer or their designee to inform them of the Duty to Warn or Protect. Follow the directions offered by the representative who answered the phone.
  • Provide only the essential information: the client’s name and necessary non-clinical identifying information (address, phone number, make/model/license plate of car, etc.). You are not required to release any clinical information to police, including, but not limited to, diagnosis, prognosis, case notes, or therapy notes. The purpose is to provide law enforcement with the minimum information necessary for them to do their job.
  • Document, document, document!  This includes the date and time of the call, the law enforcement office you contacted, the name of the law enforcement official(s) you spoke with, and the outcome of the call. Include this information in your case notes for that client.
  • Seek consultation with qualified legal counsel as soon as possible.

At Bowne Barry & Barry, we can help you determine if you have a duty to warn or protect under the Statute, and guide you through the appropriate steps needed to discharge that duty. Brief initial consultations are without charge.  Our number is 732.238.8686.