Counselors’ Liability for Counselees’ Actions

Counselors may sometimes be legally responsible for injuries caused by their counselees.

Church Law and Tax 1997-05-01


Key point. Counselors may not be legally responsible for injuries caused by their counselees, unless they are aware of a specific threat of harm toward a particular victim

• A South Carolina court ruled that a counselor was not legally responsible for the murder of an individual by one of his counselees since the counselee never made a specific threat toward the murder victim. A psychiatrist had as a patient a severely disturbed woman who worked as a nurses’ aid in a nursing home. The woman attempted to commit suicide while at work, and was hospitalized in a psychiatric ward for one month. She returned to work following her release, and within a few days set fire to several rooms. Her actions resulted in the death of one resident. Several others were injured. The family of the deceased resident sued the psychiatrist, claiming that he was guilty of negligence in failing to warn nursing home employees and residents of the danger his patient posed to them. A state appeals court ruled that the psychiatrist was not liable. It noted that South Carolina, like most states, does not recognize “a general duty to warn of dangerous propensities of others.” However, a duty to warn arises “when a person … has made a specific threat of harm directed at a particular person.” The court stressed that “it is not simply foreseeability of the victim which gives rise to a person’s liability for failure to warn; rather, it is the person’s awareness of a distinct, specific, overt threat of harm which the individual makes towards a particular victim.” The psychiatrist certainly was aware of his patient’s emotional problems, and perhaps could have anticipated that she might pose a risk of harm to others. The court concluded that such knowledge is not enough to impose a duty to warn. The psychiatrist must have been aware of specific threats made by this patient toward the individual who was killed. Since no such threats were ever made, the psychiatrist could not be liable.

Application. Are pastors or church counselors personally liable for injuries caused by their counselees? Do they have a legal duty to warn persons of a counselee’s potentially dangerous propensities? These are important questions that many counselors have asked. The court in this case concluded that counselors will not be legally responsible for failing to warn of a counselee’s dangerous propensities unless the counselee made specific threats involving an identified person. A “generalized” risk of harm is not enough. This conclusion is sensible. After all, if a counselee has emotional problems making him or her a “generalized” risk of harm to others, who should the counselor warn? Where would the duty to warn end? Very few courts have addressed these difficult questions, which makes this decision especially important. Gilmer v. Martin, 473 S.E.2d 812 (S.C. App. 1996). [Clergy Malpractice]

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