“Duty To Warn”

June 2012

… Only (my tongue is firmly implanted in cheek) thirty-six years after the landmark Tarasoff vs. Regents of the University of California decision of the California Supreme Court (1976), psychotherapists in California are getting closer to the day when the much misunderstood duty of a psychotherapist (triggered when a patient threatens physical violence against another) is no longer referred to in statute as the “duty to warn.” Even though so many, including the courts, have for decades inaccurately referred to the duty in California as a “duty to warn,” the actual duty is not a duty to warn. At one of the most critical junctures in a psychotherapist’s career (when a patient threatens physical violence against another), it is important for the therapist to know with precision what the duty is, if any, and what the law expects or allows in such situations.

Each state addresses dangerous patient situations somewhat differently. In some states, the therapist or counselor may not be under a duty to warn or a duty to protect (or to make reasonable efforts to warn or protect), but may be allowed to break confidentiality in order to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims. Federal regulations implementing HIPAA (The Privacy Rule) allow for such an exception to confidentiality – which, for covered providers, has to be compared with a state’s requirements or allowances to determine which provision takes precedence in the event of a conflict between state law and the federal regulations. Additionally, many states may have enacted statutes that provide the therapist or counselor with immunity from liability under certain dangerous patient situations or that otherwise address these situations.

How come so many, both within California and outside of California, have for so long thought that the “duty to warn” is the actual duty in California? How can so many, including some “experts,” be so wrong for so many years? The full answer is rather involved, but a brief explanation follows. In 1974, the California Supreme Court decided the Tarasoff v. Regents of the University of California case and did create a duty to warn. There was a large protest from the mental health community in California, and the Court was asked to reconsider its decision. In an unusual move, the California Supreme Court reconsidered its decision and changed the duty from a “duty to warn” to a “duty to protect.” More precisely, the Supreme Court, in its 1976 Tarasoff decision, articulated the duty as a duty to use reasonable care to protect the intended victim from the threatened danger. The Court stated that the discharge of the duty may require the therapist to take one or more steps, depending upon the nature of the case. “Thus, it may call for the therapist to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances. The Court also stated that the discharge of the duty of due care “will necessarily vary with the facts of each case.”

Thomas G. Gutheil, M.D., a well-known and well-respected Professor of Psychiatry (and forensic psychiatrist) from Harvard Medical School’s Program in Psychiatry and the Law (at the Massachusetts Mental Health Center), has explained the mistaken notion of a “duty to warn” thusly: “Why do so many experts, including forensic psychiatrists who should know better, make this same mistake repeatedly? My own hypothesis is that when the earlier, superceded Tarasoff decision in 1974 proposed a duty to warn (and was greeted by a storm of protest from mental health organizations and others) – the idea of warning someone outside the therapy dyad was so arrestingly nonclinical a notion that it became stuck in the collective temporal lobe of psychiatry to such a degree that even experts still get it wrong.”

Senate Bill 1134 (Yee) has been introduced in California and has passed its first hurdle in the Senate Judiciary Committee. This bill would remove the misleading references to a “duty to warn” from the statute that establishes immunity from liability for psychotherapists in situations where a patient has communicated to the psychotherapist a threat of violence against a reasonably identifiable patient. The statute provides immunity from liability for the failure of a psychotherapist to predict dangerousness, and also provides that where a patient does communicate a threat of violence against another to the therapist, the therapist can gain immunity from liability if he or she makes reasonable efforts to communicate the threat to the victim and to law enforcement. The failure to gain immunity from liability (by not taking the specified actions) does not necessarily mean that the practitioner has acted in violation of the duty to use reasonable care to protect the intended victim.

It is important for practitioners to know, with precision, whether or not there is a duty to protect or warn a third party under specified circumstances, what those circumstances are (in other words, when is the duty “triggered”), and what is the specific duty (if any) that must be exercised. Of course, even if there is no duty, the practitioner may have the right to break confidentiality in order to prevent or lessen a threat of physical violence against a third person. Additionally, it is important for mental health prractitioners to know whether or not there is an immunity statute in existence, and if so, under what circumstances and in what manner may the immunity be achieved.


Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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