The History Behind Tarasoff–How it All Started:
In the case of Tarasoff v. Regents of the University of California, the parents of Tatiana Tarasoff, a student at the University of California’s Berkeley campus, filed suit against a psychologist and a psychiatrist at the school’s counseling center, the University Regents, and the campus police after Ms. Tarasoff was murdered by her former boyfriend, Prosenjit Podar. Podar had previously informed the psychologist of his intent to kill Ms. Tarasoff; and, although the psychologist contacted the campus police, Podar was found to be rational when the police questioned him and was released. Podar did not contact the psychologist again, and he murdered Ms. Tarasoff several months later. The Tarasoff ruling and subsequent related case law and statutes define a psychotherapist’s duty to warn/protect the potential victim of a therapy client.
What happened as a result–
The original 1974 Tarasoff decision established a psychotherapist’s “duty to warn” the intended victim of a client. However, in a rehearing of the case in 1976, this was changed to a “duty to protect” the intended victim by warning him/her, notifying the police, and/or taking other reasonably necessary steps. a. Civil Code Section 43.92: The state of California adopted CC Section 43.92 in 1985 as an immunity statute designed to protect psychotherapists from monetary liability when they fulfill their duty to warn/protect. It was revised in 2013 to unambiguously define the duty as a “duty to protect” and states that “there shall be no monetary liability on the part of … a psychotherapist” when a patient communicates a “serious threat of physical violence against a reasonably identifiable victim or victims” and the therapist discharges the duty to protect by making a reasonable effort to communicate the threat to the victim(s) and to a law enforcement agency.
In 2004 the court’s opinion in Ewing v. Goldstein expanded the meaning of a patient’s communication in Section 43.92 to include communications from the patient’s “immediate family members.” In other words, the court concluded that a communication from a patient’s family member may trigger a therapist’s duty to protect. The court also addressed the ambiguity of the terms “serious” and “physical violence” in Section
49.32 and concluded that they include “grave bodily injury … [which is] short of murder, but akin to ‘mayhem’ or ‘serious bodily injury’ as defined by statute.” Note that Ewing is case law and that there is no actual mandate to breach confidentiality when the communication comes from a patient’s family member. However, most mental health professionals would choose to do so since case law influences judgments of liability.
Confidentiality of Medical Information Act (CMIA): As noted above, EC Section 1024 provides an exception to the psychotherapist-patient privilege when a client poses a danger to self, others, or the property of others and is routinely interpreted as being applicable to the breach of confidentiality in contexts outside of legal proceedings. To more clearly establish the acceptability of breaching confidentiality when a client is a danger to others, CC Section 56.10(c)(19) was added to CMIA. It states that medical information “may be disclosed, consistent with applicable law and standards of ethical conduct, by a psychotherapist … if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.”
Come back next week to a question related to Tarasoff and another post on a similar topic with Situations in Which Duty to Warn/Protect Does NOT Apply.