The Dangerous Patient—A Current Look "Tarasoff" Revisited By: Richard S. Leslie, J.D. Of Counsel The California Therapist (March/April 1990)

Danger to Others
The famous Tarasoff v. Regents of the University of California decision by the California Supreme Court, decided in 1976, created a new duty for therapists when they are treating certain patients in the state of California. Specifically, the court held that "[w]hen a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger." While this case has come to be known as the case that established a "duty to warn," it is more accurate to state that the duty created by Tarasoff is a "duty to take reasonable care to protect the intended victim."

The court did state that the discharge of this duty may call for the therapist to warn the intended victim or to take any other steps reasonably necessary under the circumstances. This has probably become known as "the duty to warn" case because that particular step is usually considered the most effective means to protect the intended victim. It should be noted, however, that many therapists have likely complied with their "duty to protect" by taking actions other than warning the victim, like intensive/marathon therapy, involuntary commitment, or voluntary hospitalization.

The wording of the court’s decision should be carefully considered. First of all, it talks about the therapist’s patient, and not some other person. Thus, if a patient tells his therapist that his friend or his wife intends to harm another, no duty exists for the therapist, since his patient is not the one who is threatening violence. The therapist, of course, may want to explore with the patient ways in which the patient may act to prevent the threatened harm. Likewise, the Tarasoff duty is not applicable when the patient tells the therapist that he/she has been harmed or threatened with harm, by some other person, since again, the patient is not the one who is threatening to do harm.

The wording of this court-made duty uses the phrase "serious danger of violence." It doesn’t say "a danger of serious violence," and thus it should not be interpreted as requiring a threat of murder/homicide. The use of the phrase indicates to many observers, verified by other judicial decisions, that the threat must be "imminent" in order for the duty to arise. The nature and extent of the physical violence are usually not the critical issues.

In this regard, it is important to note the following language from the decision: "We realize that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly, a therapist should not be encouraged to routinely reveal such threats; such disclosures could seriously disrupt the patient’s relationship with his therapist and with the persons threatened. To the contrary, the therapist’s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger." In other words, the court seems to want this duty to be exercised sparingly, and only when the threat of violence is a serious one, i.e., it is going to occur soon, and the therapist reasonably believes that the patient is serious about the threat. Thus, the therapist must not act too quickly when conditional or vague threats are made, or when the patient talks about mere thoughts of violence. Records should be carefully documented so that the therapist’s judgment and the reasons for that judgment, are readily discernible from an examination of the file.

Going back again to the court’s specific wording, one should note that the threat is made against "another," or against an "intended victim." The decision talks about persons "readily identifiable" by the therapist, but not necessarily known. The court acknowledged that "in some cases, it would be unreasonable to require the therapist to interrogate his patient to discover the victim’s identity or to conduct an independent investigation." However, it pointed out in other cases, "a moment’s reflection will reveal the victim’s identity." Because of this language and because of other judicial decisions, it is generally said that a "Tarasoff duty" does not exist when there are nonspecific threats made against nonspecified persons. While disclosure of those threats may not constitute a breach of confidentiality because of Section 1024 of the Evidence Code (see below), it is generally believed that such threats do not fall under the strict dictates of the Tarasoff decision, and thus the so-called "duty to warn" is not activated.

A 1983 case entitled Hedlund vs. Superior Court of Orange County, extends the liability of a therapist who negligently fails to exercise his/her "Tarasoff duty" to persons other than the intended victim. A careful reading of the case suggests that the "duty to warn" was not changed by the Hedlund decision. There still must be a readily identifiable victim and the danger of physical harm must be imminent. The scope of possible liability, however, has been broadened.

The Hedlund case stands for the proposition that when a therapist negligently fails to fulfill his/her duty to warn an identifiable, potential victim that a patient has threatened violence, the therapist may be liable not only to the person against whom the threat is made, but also to those who may be injured if the threat is carried out. In this case, the court ruled that the young son of the identifiable victim was both foreseeable and identifiable as a person who might be injured, if the patient assaulted the identified victim. The court refused to decide whether a duty exists to all bystanders who might be injured. They limited their decision to the young son whom the court clearly found to be a foreseeable victim.

In the Hedlund case, the young son of the intended victim did not suffer any physical injury. He sued for emotional injuries and psychological trauma. The child was seated next to his mother when she was shot by the patient. The mother threw herself over him thereby saving his life and preventing serious physical injury to him. The court stated, in part, "It is equally foreseeable when a therapist negligently fails to warn a mother of a patient’s threat of injury to her, and she is injured as a proximate result, that her young child will not be far distant and may be injured or, upon witnessing the incident, suffer emotional trauma. Nor is it unreasonable to recognize the existence of a duty to those in close relationship to the object of a patient’s threat, for the therapist must consider the existence of such persons both in evaluating the seriousness of the danger posed by the patient and in determining the appropriate steps to be taken to protect the named victim."

The son did not allege that the therapist involved had a duty to warn or protect him. He claimed instead that because it was foreseeable that if the patient carried out his threat against the mother, a risk of harm to bystanders and those in close relationship with the victim (mother) existed and the therapist owed a duty which extended to him. That duty was breached, he claimed, when the therapist failed to protect the mother.

One other aspect of the Tarasoff decision must be explored. Note (supra) the phrase "or pursuant to the standards of his profession should determine." That phrase has been the source of much controversy over the years because it essentially required the therapist to predict dangerousness. It is generally asserted that even the best practitioners cannot, with any degree of accuracy, predict future violence or dangerousness. It has therefore been argued that the burden placed upon the therapist by the court is unfair and unreasonable. This clause has allowed injured parties to sue therapists upon an allegation that the therapist either knew or should have known of the patient’s dangerousness. Then, benefited by hindsight (after the facts have unfolded and the patient has committed an act of violence), the allegations may be easier to prove to a jury, perhaps in the absence of any clear evidence that the therapist should have been able to predict such acts based upon the information available to the therapist before the act was committed.

Effective January 1, 1986, this problem was eliminated through legislation. Section 43.92 of the Civil Code then became law. It reads as follows:

(a) There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to warn of and protect from a patient’s threatened violent behavior or failing to predict and warn of and protect for a patient’s violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.

(b) If there is a duty to warn and protect under the limited circumstances specified above, the duty shall be discharged by the psychotherapist making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency.

This section of law provides the therapist with immunity if he/she complies with its provisions. It clearly specifies that the therapist must act only where the patient has communicated to the psychotherapist (MFCCs are defined in Section 1010 of the Evidence Code as psychotherapists) a serious threat of physical violence, and not when the therapist merely should have known or should have predicted. It is important to pay particular attention to the second paragraph of the law, for this section mandates that once the duty is present, it must be exercised by doing two things:

1) reasonable effort to communicate the threat to the victim

2) notification of law enforcement agency

If the therapist fails to do both, then clearly he/she would not be entitled to the immunity granted under this section of law. This immunity does not mean that you won’t be sued; it simply means that your attorney would be able to get the lawsuit dismissed at an early stage of the proceedings by showing that your conduct was completely consistent with the dictates of section 43.92 of the Civil Code. Thus, if the therapist seeks protection, he/she will do both things required by statute.

The primary question raised by this statute is whether or not it completely overrules Tarasoff, or whether it simply provides a path for immunity. In other words, are practitioners still free to take reasonable care to protect the intended victim (short of calling the police, for instance), or must they always comply with subdivision "(b)?" What if the practitioner decides to involuntarily commit the patient, or the patient agrees to a hospitalization for intensive treatment? Is this not a reasonable step to take, though short of warning the victim or the police? I am not aware of a clear answer to this question, although my view is that failure to comply with Section 43.92 (b) deprives one of the immunity, but does not necessarily mean that he/she was negligent. Practitioners who may be faced with this particular problem should consult an attorney for further advice and direction.

Danger to Self/Property
Following the Tarasoff decision, a California appellate court was presented with the "duty to warn" question with regard to a suicidal patient. In the case of Bellah vs. Greenson, an appellate court refused to extend the Tarasoff decision to patients who present a threat of self-inflicted harm. The court did point out, however, that the therapist, while not under a strict "duty to warn," did have a duty to take reasonable steps to prevent the patient from committing suicide. This duty really means that the therapist has to act like the reasonably prudent therapist would act under like circumstances; that is, through clinical interventions the therapist must move to prevent the patient from attempting the contemplated self-harm.

While the court was reluctant to extend a "duty to warn" in these cases, it must be remembered that Section 1024 of the Evidence Code gives psychotherapists the right to make disclosures to others which are deemed by the therapist as necessary to prevent the threatened danger. Thus, it is not uncommon for therapists to warn or alert the spouse or parent of a suicidal patient. If the therapist can articulate solid reasons why a warning or disclosure might be harmful to the patient, then such disclosure will obviously not be made. Any warning or disclosure should of course, be supported by reasons why it is calculated to prevent the threatened danger.

When a court examines a therapist’s conduct, it is, of course, doing so retrospectively. It will look at the issue of foreseeability, i.e., did the therapist know or should he/she have known of the foreseeable risk. Thus, an adequate diagnosis or attempt to diagnose is essential. The court will also look at whether or not the therapist made reasonable attempts to control the patient. It is thus incumbent upon the therapist to decide what management options should be pursued. A thorough knowledge of diagnostic techniques and management options is thus an essential ingredient in protecting yourself from liability in this difficult area of practice.

Section 1024 of the Evidence Code reads as follows:

There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.

Thus, the interpretation of the court in Bellah vs. Greenson would seem to be applicable to cases involving threats to the property of others. In other words, the Tarasoff "duty to warn" does not apply, but the "right to warn" exists under Section 1024 of the Evidence Code.

Comments of the Law Revision Commission (an official body that studied psychotherapist-patient privilege issues and made recommendations to the legislature) which follow Section 1024 of the Evidence Code, support the notion of "the right to warn." Those comments state, in part: "Although this exception might inhibit the relationship between the patient and his therapist to a limited extent, it is essential that appropriate action be taken if the psychotherapist becomes convinced during the course of treatment that the patient is a menace to himself or others and the patient refuses to permit the psychotherapist to make the disclosure necessary to prevent the threatened danger." While this quote does not specifically mention property damage, the statute does. Since there apparently is no "duty to warn" of threatened property damage, therapists should exercise caution before revealing the confidential communications of their patients, even though permitted to do so under Section 1024 of the Evidence Code. Again, consultation with an attorney should be sought when dealing with "sticky" situations. Also, as stated earlier, good recordkeeping is important so that the basis for the therapist’s judgment is well-documented. As a general rule, errors in judgment do not necessarily result in liability for the practitioner. It is only when those errors in judgment are the result of negligence that liability attaches. In other words, the therapist must act like a reasonably prudent practitioner would act under similar circumstances. The courts do recognize that some errors in judgment are non-negligent. There is no expectation of perfect judgment.
There is considerable controversy as to the precise meaning of Section 1024 of the Evidence Code. The controversy stems from the fact that this section of law is a part of the psychotherapist-patient privilege statutes dealing with the right to withhold testimony in a legal proceeding. Yet, it also appears to operate, based upon the Law Revision Commission’s comments and upon case law, as an exception to the general rule of confidentiality, even where no lawsuit is pending and no testimony is being sought.

CAMFT, together with the California Psychiatric Association and other organizations, is currently involved (through a "friend of the court" brief i.e., an "amicus curiae" brief) in the appeal of a murder conviction that involves an interpretation of Section 1024 of the Evidence Code. Thus, the California Supreme Court may soon decide the appeal and may shed further light upon this troublesome section of law. The central questions of the appeal, insofar as they relate to psychotherapist-patient privilege, are whether the trial judge improperly allowed evidence to be introduced concerning the Tarasoff warnings given by the therapists who were treating the patient (the defendant), and whether he improperly allowed the therapists to testify to the communications from the patient that led them to believe that the victim was in danger.

We are arguing, in essence, that this testimony was erroneously allowed because Section 1024 of the Evidence Code expressly states that disclosure of the information must be necessary to prevent the threatened danger. At the time of trial, no danger existed, and thus the communication of patient to psychotherapist should have been protected by the privilege. The prosecution is arguing that once the disclosures were made pursuant to Section 1024 and Tarasoff, all of the communications that led the therapist to believe that the victim was in danger, including the actual warning, are not protected by the privilege (e.g., There is no privilege...) even though disclosure is no longer necessary to protect anyone. After the Supreme Court decides this case, I expect to write a follow-up article. Hopefully, the decision will be helpful in better understanding the full import of Section 1024 of the Evidence Code.