Tarasoff “duty to warn” clarified

By Stephen E. Berger, Ph.D. and Michael A. Berger, J.D., MA.
March 1, 2009



The National Psychologist brought to our attention a recent, provocative and potentially very helpful article written for the publication of the California Association of Marriage and Family Therapists (The Therapist, September/October 2008, p.24-30), by Richard Leslie, J.D. He is attorney at law and of counsel for the association. In his article, he addressed some confusion that exists regarding California law and dangerous patients (Leslie, 2008).

He points out that historically, the issue of our duties when we determine (or should have determined) that our patient is dangerous, arise from Tarasoff v. Regents of the University of California – decided by the California Supreme Court in 1976.

Leslie points out that our confusion seems to stem from the fact that, previously, in 1974, the California Supreme Court stated in Tarasoff that therapists have a “duty to warn” prospective victims. He said since the court issued its subsequent ruling in 1976, the ruling now reads that when a therapist determines “… that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim .…”

Notice the duty is now to PROTECT.

Leslie said the court further ruled that: “The discharge of this duty may require the therapist to … warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever steps are reasonably necessary under the circumstances.”

Thus, Leslie makes it clear by reminding us of the exact words of the court’s 1976 ruling that in California, the duty is to PROTECT, and in order to fulfill that duty to protect, actions a therapist might have to take could be to warn the potential victim and/or to notify the police, but such actions were not specifically required by the ruling.

In an effort to explain how so many people think that the ruling in Tarasoff is that we have a duty to protect as well as a duty to warn the potential victim and to notify the police, Leslie references the “immunity” statute (Section 43.92 of the Civil Code) enacted by the California Legislature in 1986 and amended in 2007.

Simply stated, in our view (not to be attributed to Leslie), the statute states that if a duty to protect exists in a given case, there shall be no liability for a therapist who then notifies the police and makes a reasonable effort to notify the potential victim. In other words, if a therapist does those two things, the therapist is safe from liability.

Even if a therapist does not do those two things, the therapist could still avoid liability as a result of other efforts made to “protect” the potential victim (such as hospitalizing the patient or increasing their meds).

In other words, neither the Supreme Court ruling in Tarasoff, nor the subsequent “immunity” legislation required (imposed a duty) that therapists notify the police and make reasonable effort to notify the potential victim, but to repeat, under the “immunity” statute, if a therapist takes those two actions she or he is to have immunity from liability. To us, it is understandable that so many have come to (con)fuse the court ruling and the statute.

In his article, Leslie points out that over the years, he came to realize that courts appeared to be suffering this same (con)fusion, as this misunderstanding was appearing in instructions to juries. Specifically, he found that juries were being instructed that in order for a therapist to avoid liability in cases where patients had harmed others, the therapist had to have notified the police and made reasonable efforts to notify reasonably identifiable victims (Leslie specifically references the Judicial Council’s Jury Instructions).

Leslie informs us that, together, he and others were able to convince the California Judicial Council to “change the wording of the jury instruction so that” the prior misinterpretation of the law “was corrected” and juries would not be told that in order to have immunity from liability in dangerous patient cases that a therapist had to both notify the police and make reasonable effort to notify reasonably predictable potential victims.

Leslie’s article also addresses a related issue concerning such warnings. Refer to his article for his discussion of the relationship of the California Evidence Code and the California Confidentiality of Medical Information Act (CMIA) as they relate to breaking confidentiality of dangerous patients and recent modification of the CMIA to address this issue.

For the moment, it is sufficient to say that the CMIA has been modified (see Section 56.10(c)(19) of the Civil Code) so that it is more clear that therapists have “… the authority or permission to disclose …” a patient’s dangerousness.

————

NicStephen E. Berger, Ph.D., ABPP is a California licensed psychologist practicing in Laguna Hills, Calif. He is on the core faculty at Argosy University Orange County California were he specializes in teaching in the forensic concentration and ethics and law. His e-mail address is: Steveabpp@aol.com.

Michael A. Berger, J.D., M.A., is a California licensed attorney specializing in mental health law while teaching political science and pursuing creative writing.

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