Three recent court decisions in California have clarified some aspects of the psychotherapists duties with respect to patients who present serious dangers of violence to others, but have, at the same time, raised other issues of concern to the psychotherapy community. These cases relate to the famous Tarasoff v. Regents of the University of California decision in 1976, the California Supreme Court decision that is recognized throughout the nation as a landmark decision for the psychotherapy community, and the subsequently passed "Tarasoff Immunity" statute, a California law that became effective on January 1, 1986. This article will briefly review the Tarasoff decision and the immunity statute, and will then explore the recent rulings related thereto.
The Tarasoff Decision
Thus, this section of law provides the therapist with immunity if the therapist performs both acts required by subdivision "b." The duty to warn and protect does not arise, however, unless the patient "has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim..." Therapists who are interested in obtaining immunity from liability will strictly follow the dictates of Section 43.92. Those who do not, however, will not necessarily be found liable or negligent, but will clearly not be entitled to immunity. Their actions, in attempting to prevent violence, will ultimately be judged by the court or jury, and should be measured by the standard established in Tarasoff (reasonable care standard). Please refer to the article in The California Therapist referred to above for a further discussion of this statute and the topic of "the dangerous patient."
and other Statements Ruled Admissible in Court
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.
In the Wharton Case, Mr. Wharton had seen two psychotherapists, and had confided to both of them, during the course of treatment/therapy, that he feared he would do harm to a woman named Linda Smith, his girlfriend. Both therapists, at a given point in their treatment of him, determined that he presented a serious danger of violence to Ms. Smith. They determined that a warning to Ms. Smith was necessary and they therefore did warn her of the danger. Unfortunately, and despite the warning, Ms. Smith was thereafter murdered. A jury convicted Mr. Wharton of the murder and his conviction was upheld on appeal.
One of the primary issues on appeal was the question of whether the trial courts decision to allow the testimony of Mr. Whartons psychotherapists, be admitted into evidence before the jury was correct. The defense contended that the evidence should be excluded, claiming that the psychotherapist-patient privilege should apply. The prosecution argued that the privilege did not apply, and that the evidence should be admitted. More specifically, the testimony of the psychotherapists that was at issue involved 1) the actual content of the warnings actually made to Linda Smith and 2) the communications between Mr. Wharton and his psychotherapists that led them to believe that a warning was necessary. The determination of this issue necessarily involved an interpretation of Section 1024 of the Evidence Code (see above).
As discussed in the article referred to above (March/April 1990 issue of The California Therapist), there was considerable controversy as to the precise meaning of Section 1024 of the Evidence Code. The controversy as a result of the Wharton decision, has now been settled by the California Supreme Court. But even within the court, there exists controversy, since the ruling was a 4-3 decision. In summary, the Supreme Court majority ruling affirmed the admissibility of the psychotherapists testimony, and ruled that the psychotherapist-patient privilege did not apply. Both the content of the actual warning and the communications between Mr. Wharton and the therapists which led them to make the warnings were ruled admissible.
The court has essentially ruled that once a therapist warns the intended victim of imminent violence, this communication can later be admitted into evidence because the communication is not privileged. With respect to the admissibility of the therapist-patient communication which led the therapist to make the warnings, the court ruled that those communications never attain privileged status, since the therapist has obviously determined that "disclosure is necessary to prevent the threatened danger."
Even though disclosure is no longer necessary to prevent the threatened danger at the time of trial, when the issue of privilege is before the court, the courts majority takes the position that the opening phrase of Section 1024 (i.e., "There is no privilege...) means that none of the communications that triggered the warning ever attain the privileged status. Two of the seven justices felt that only the actual warning should be admissible, while one justice felt that none of the testimony from the psychotherapists should be admissible.
Scope of Tarasoff
The Menendez case
involved two brothers who were charged with the murder of their parents.
The brothers were patients of a psychotherapist, and during the course
of a psychotherapy session, one of the brothers told the therapist that
the brothers had committed the murder. The other brother thereafter told
the therapist that they would have to kill him and anyone associated with
him since he now knew about their misdeed. When the therapist warned those
who were closely associated with him (his wife and business associate),
he told them not only of the threat, but of the part that there had been
an admission of the murder by one of the brothers during the course of
therapy. Additionally, the therapist communicated with the "associates"
on more than one occasion, keeping them informed of the situation. The
court ruled, as indicated above, that the nature and extent of the warnings
Approximately ten days after the above-described incidents, the patient went into the office of the social services department, and in the presence of a clerical worker, went next to the office manager, and stood at her shoulder, as he had done on a number of previous occasions. The clerical worker left the office to run an errand. When the office manager hung up the telephone and stood up, the patient pushed his body against her and pinned her against the wall. He attempted to fondle her breast and force her legs open while he masturbated. The office manager was wearing a pants outfit at the time and none of her clothes were removed during the assault. When the clerical worker returned, the patient ran away.
The court, in making its decision, pointed out that the patient never made verbal threats within the hearing of the psychiatrist or his assistants, and it was never proven that the psychiatrist knew that his patient had violent propensities. Based upon these findings, and the courts interpretation of Section 43.92 of the Civil Code, the court concluded that the therapist was entitled to immunity from liability. Its decision, however, seemed to be based more upon a finding that there was no "serious threat of physical violence" present, rather than finding specifically that the immunity was granted because the patient did not communicate to the psychotherapist a serious threat of violence.
The court, in confusing language to this writer, stated that were was insufficient evidence to suggest that, based upon the patients prior conduct, the psychotherapist should have been aware that the patient was likely to commit such a serious sexual assault. What if, I ask, the therapist "should have been aware." The very purpose of Section 43.92 was to remove the burden to predict dangerousness. The Supreme Court, in enunciating the so-called "Tarasoff rule" in 1976, imposed the duty upon therapists who, "pursuant to the standards of the profession, should have determined" that the patient presented a serious danger of violence to another. It was this clause that Section 43.92 was intended to vitiate!
Perhaps the courts opinion means that the patients communication to the psychotherapist need not be oral, but can be by prior conduct. Or, perhaps the court was really trying to say that the issue of communication was not being decided, but rather the issue of whether a serious danger of violence existed. My view, however, is that even if a serious danger of violence did exist, and the therapist was negligent in failing to discern the existence of this danger, that there would nevertheless be immunity from liability because the patient did not communicate a threat to the psychotherapist. Perhaps other cases will interpret this section of law and clarify any ambiguities that the language of the decision has created. Obviously, if a therapist were to predict that his/her patient presented a serious danger of violence to another, the therapist is permitted to make disclosures to others to prevent the threatened danger (Section 1024 of the Evidence Code).
The disturbing aspect of the Wharton decision, discussed above, is that therapists may be more reluctant to make warnings in questionable or close cases because they now know that the content of the warning and the patients communications that triggered the warnings will be admissible at the trial if the patient should carry through with the threat. Would it not be a better public policy to encourage warnings by upholding the privilege and protecting the communications between therapist and patient from admission into evidence at the subsequent trial? This question, in this writers opinion, needs to be further examined and discussed. Perhaps legislation will be needed to assist in the resolution of this issue. It should be remembered that there is only an obligation (duty) under the particular circumstances described in the Tarasoff case and statute, but that Section 1024 of the Evidence Code gives therapists permission (the right, as opposed to the duty) to disclose. Should not society, by its laws, encourage therapists to disclose by protecting the privilege rather than by emasculating the privilege?
This article appeared in the November/December 1991 issue of The California Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.