Avoiding Liability Bulletin – April 2005
… Wow – what a problem exists in California! Therapists are in somewhat of a precarious situation for a number of reasons related to a) the famed “Tarasoff” decision and subsequent court decisions interpreting the duty, and b) the statute that sought to give immunity to therapists under specified circumstances related to threatened harm by the patient against reasonably identifiable victims.
It seems as though some are now questioning whether or not a therapist may safely comply with his or her duty when the patient threatens imminent harm against another by taking reasonable steps to protect the intended victim, such as hospitalizing the patient. There are some who maintain that under specified circumstances, the therapist, in essence, does not have the option to hospitalize but must make a reasonable attempt to warn the intended victim and to notify a law enforcement agency. Failure to do both, they maintain, makes the therapist liable, regardless of how reasonable the hospitalization may have been. This, in my view, is quite troublesome.
Such a rigid approach is not in the best interests of the patient (continued treatment, privacy), nor is it consistent with the principles enunciated in the Tarasoff decision, which called for action that preserved confidentiality to the extent consistent with protection of the victim from the threatened harm. Involuntary hospitalization, for example, is usually such an action.
As this confusing situation now gets debated in the California Legislature, it’s anyone’s guess as to how the confusion will be resolved. Opinions will likely differ on how it should be resolved. The Tarasoff decision, and the duty created thereby, is well known and well respected nationwide, even though each state may treat the subject matter a little bit differently. If there is a duty (as opposed to a right), what is the duty in your state and when, precisely, is it triggered? If you cannot readily answer that question, you should be concerned. This can be a tricky area of the law. Best to get the answer now, when things are calm!
ABOUT THE AUTHOR
"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.