The Psychotherapist's Duty to Protect Third Parties from Harm

In 1974, the California Supreme Court issued its land mark decision in Tarasoff v. Board of Regents of the University of California1 which held that psychotherapists may have a duty to protect a person whom their patient threatens to harm. Before Tarasoff psychiatrists were liable for the violent acts of their pa tients only when the court found a breach of the duty to control hospitalized patients. They also were required to use due care in deciding on their release.2 Since 1974, more than 20 jurisdictions have considered the Tarasoff doctrine.3 Repeatedly courts have been asked to consider whether the Tarasoff duty applies when a psychotherapist is treating an outpatient, and whether Tarasoff, as well as the duty to use due care, applies when a hospitalized patient is released. The courts have held consistently that psychotherapists have a duty to protect a named third party when their patients make specific threats against that party. A few courts have even ex tended the duty to unnamed third parties and to proper ty.4 Other courts have refused on public policy grounds to apply the Tarasoff doctrine.5 This paper's primary purpose is to delineate how the courts define the responsibilities of mental health pro fessionals based on the duty to protect. A secondary pur pose is to evaluate whether the duty to protect is, as many psychotherapists charge, overly burdensome, or whether it is accomplishing a useful social purpose. The Tarasoff Decision When a psychotherapist became convinced that his pa tient, Prosenjit Poddar, posed a threat to Tatiana Tarasoff, he tried,,without success, to have him commit ted. Instead, the patient terminated therapy and two months later killed Tarasoff. Tarasoff's survivors sued, charging the therapist with negligence in failing to confine the patient and in failing to warn Tarasoff of her peril. A lower court held that the defendant was statutorily immune on the question of the failure to confine, and had no legal obligation to warn the potential victim.6 Following a number of interim court actions, the California Supreme Court reheard the case in 1976, and in a 4-3 opinion,7 ruled When a therapist determines or pursuant to the standard 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. The discharge of this duty. . . may call for him to warn the intended victim or others likely to apprise the intended victim of danger, to notify the police, or take whatever steps are reasonably necessary under the circumstances.8