Recent Rulings Shed Light on "Tarasoff Warnings"
By: Richard S. Leslie, J.D.
Of Counsel

The California Therapist
(November/December 1991)

Three recent court decisions in California have clarified some aspects of the psychotherapist’s 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
The landmark Tarasoff decision created a duty for therapists who are treating patients that present a serious danger of violence to others. More specifically, the court held that "when 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 the Tarasoff case is a "duty to take reasonable care to protect the intended victim." In the March/April 1990 issue of The California Therapist, in an article entitled, "The Dangerous Patient," I more fully analyze this landmark decision. Please refer to that article for a more in-depth analyses of the various aspects of the court’s holding.

The "Tarasoff Immunity" Statute
In 1985, the California legislature passed a bill that was intended to limit the liability of therapists by removing the burdensome obligation to predict the dangerousness of their patients. The Tarasoff court, in crafting the above-mentioned rule, used the phrase, "or pursuant to the standards of his profession, should have known," thus creating, in effect, a duty to predict dangerousness. Effective January 1, 1986, Section 43.92 of the Civil Code provides 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.

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."

Tarasoff Warnings and other Statements Ruled Admissible in Court
In a case entitled People v. Wharton (1991), the California Supreme Court issued a decision that resolved several questions related to the issue of psychotherapist-patient privilege. At issue in the case was the interpretation of Section 1024 of the Evidence Code, the dangerous patient exception to psychotherapist-patient privilege. That important section of law, which is commonly interpreted to permit therapists to break confidentiality, states 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.

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 court’s decision to allow the testimony of Mr. Wharton’s 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 court’s 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 Warning Broadened
Under the original Tarasoff decision, the California Supreme Court took pains to point out that when therapists do deem it necessary to warn "the intended victim," that they do so discreetly, and in a manner that preserves patient confidentiality to the fullest extent possible. For instance, the therapist need not provide the intended victim with a rationale for his/her belief, and by the words of the "Tarasoff Court," he/she is expressly discouraged from doing so. In another 1991 decision, this one by a California appellate court (Menendez v. Superior Court), the court ruled that the content of a "Tarasoff warning" may include any of the patient’s statements to the therapist that the therapist reasonably believes are necessary to disclose to the victim (or to the police) in order to convince the intended victim, etc. of the extent and seriousness of the danger.

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 were appropriate.

Immunity Statute
A 1990 appellate court decision (Barry v. Tarek) upheld the dismissal of a lawsuit against a psychotherapist, relying upon the provisions of Section 43.92 of the Civil Code (cited above), who failed to warn a reasonably identifiable victim about harm that she suffered at the hands of the psychotherapist’s patient. The appellate court pointed out that this statute was enacted "to limit the liability of psychotherapists under Tarasoff v. Regents of University of California."
The court was dealing with the following set of facts. The psychiatrist was treating, in a hospital, a male Afghani who had suffered severe injuries to the head and neck in the Afghani war. He was hospitalized for the purpose of receiving reconstructive surgery. He was 18 years of age, five feet four inches tall, weighed approximately 105 pounds, wore a mask covering most of his face, and spoke no English. The patient roamed freely on the 7th floor of the hospital and on a number of occasions followed nurses in "inappropriately close ways" and "grabbed nurses and tried to kiss and fondle them."

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 court’s 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 patient’s 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 court’s opinion means that the patient’s 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 patient’s 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 writer’s 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.

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