Avoiding Liability Bulletin – June 2006
… In a previous issue of the Avoiding Liability Bulletin, under the heading of Dangerous Patients and the “Tarasoff Duty”(April 2005, Volume 2), I described a problem in California and asked about the law in your state regarding the duty, if any, on the part of a therapist or counselor to protect a third party from the threatened physical violence of the patient. The law varies in fine nuance from state to state, not only with respect to the issue of the specific duty and how it may be discharged, but with respect to the issue of when the duty is “triggered.”
For example, one trigger (consistent with the famed California Supreme Court’s 1976 decision in Tarasoff v. Regents University of California) is when the therapist determines that the patient presents a serious danger (e.g., imminent) of physical violence to a readily identifiable other. Another type of trigger is when the patient communicates to the therapist an explicit threat to kill or inflict serious bodily injury against a reasonably identified victim.
As you might discern, the differences between these two approaches to the “trigger” of the duty are significant. In the first example, the therapist’s determination may apparently be made not only as the result of a threat made by the patient, but by a variety of factors, such as communications and information received from others, a review of prior treatment records, the patient’s nonverbal communications, and the patient’s communications (verbal and non-verbal) that do not amount to “an explicit threat.”
In the second example, the duty is arguably triggered only if there is an explicit threat communicated by the patient to the therapist. Thus, in some cases a therapist might determine that the patient is an imminent danger of serious physical violence to a readily identifiable other, but might apparently owe no “duty to warn” or “duty to protect” the victim because there was no communicated and explicit threat. Some state statutes (or case law) combine these kinds of approaches to the “trigger,” while others may contain different and somewhat ambiguous language. One must read the state laws (and case law) very carefully in order to discern the exact parameters for the “trigger” of the duty.
If one doesn’t understand when the duty is triggered, he/she may be breaking confidentiality if certain disclosures are made without the patient’s written authorization. Of course, it is quite possible that the state law will allow or permit disclosures to be made in situations that do not require the therapist or counselor to warn or notify anyone (e.g., situations that do not involve explicit threats of imminent physical violence).
Once one understands when the duty is triggered, it is then important to understand what the actual duty is. For example, is it a duty to warn, a duty to protect, or a duty to warn and protect? It is also important to understand how the duty is to be discharged in order to obtain (if possible) immunity from liability, and whether the therapist can take other reasonable action that may not result in liability (even though the action taken does not entitle the therapist to immunity)
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.