About The Tarasoff Law
The following article provides some insight into utilizing the Tarasoff (duty to warn) law. Long story short, it’s not easy! Almost everything dealing with legal matters can be tedious in psych. However, the article does offer some solid advice, safety considerations, and ways to improve clinical practice while dealing with extreme circumstances. NPs are living in more difficult times, thus it’s important to always beware of a person’s legal rights. Here’s a quick glance at major court cases that affected mental health care before reading the article:
- Durham vs. United States (1954): determined that an individual is not criminally responsible if the unlawful act was the product of mental illness. This case is known for originating the insanity defense.
- O’Connor vs. Donaldson (1976): ruled that harmless mentally ill patients cannot be confined against their will if they can survive outside. This case determined that the presence of mental illness alone cannot justify involuntary hospitalization.
- Tarasoff v. Regents of the University of California (1976): determines that if a patient presents as a serious threat of violence to another person, the healthcare provider is obligated to use reasonable care to protect the intended victim against harm. In these situations, the nurse practitioner can legally break patient confidentiality.
- Rennie vs. Klein (1979): determined that patients have the right to refuse any treatment and use an appeal process.
- Roger vs. Oken (1981): a case that determined that patients have an absolute right to refuse treatment, but a guardian may authorize their treatment. A patient’s right to refuse treatment is a legal doctrine that applies to all persons except during emergencies. An emergency is defined as a condition in clinical practice that requires immediate intervention in order to prevent death or serious harm to either the patient or another person.
To Invoke or Not to Invoke: Tarasoff Is the Question
CASE REPORT
Two cases illustrate the dilemma of the duty to warn. The intricacies of Tarasoff involve so many variables, from state to state, scenario to scenario, case to case. How does one practice good clinical judgment? The article presents a consideration and discussion with two personal stories in which the so-called Tarasoff Rule, or the “duty to warn” a threatened third party, was invoked.
One was arguably appropriate; the other, arguably not. In my experience, invoking Tarasoff remains quite contentious, and even legal specialists are often indecisive. For patient confidentiality, details in the cases presented have been changed. Following this piece, James L. Knoll IV, MD, provides a forensic analysis.
CASE 1
When I was an intern, we had a young man committed to us for attacking his mother, and for continuing to threaten her. This was especially problematic in that he lived with her, had no intention of living without her, and his mother was firmly set on his continuing to live with her. We held him for weeks, into months. He had several forensic evaluations along the way.
At first resistant, he eventually agreed to take medication. He learned “to say all the right things,” such that the forensic specialist assigned to his case agreed with the judge in the case that there were no longer grounds to hold him against his will. I, and others who had worked closely with him, did not agree, and so the Tarasoff rule was invoked.
I sat down face-to-face with the young man’s mother. I discussed at length with her that the patient would have to be discharged, and the reasons why. I explained as concretely as I could that although he had previously repeatedly made physical and homicidal threats toward her, he recently had been taking medication with superficial improvement such that a judge, as well as a specialist in criminal mental health, had advised us that we could no longer hold him against his will. She acknowledged all this with tears in her eyes and stoic resignation on her face. She absolutely understood what I was telling her, but she made it quite clear that she would welcome him back home regardless.
Two days later, he was arrested for stabbing his mother several times in the face. She survived the attack. He was eventually committed to a state forensic facility.
CASE 2
When I was a fellow at a major pediatric hospital, we had a very disturbed young man who had been sent to us by his outpatient therapist after he had revealed to her several notebooks detailing the many gruesome ways he was planning on eviscerating and alternatively torturing and taking apart piece by piece a particular older boy at his high school. The notebooks were filled, front to back, with minute, bizarre scribblings, macabre poems, as well as several hand-drawn pictures of a mutilated young man in various stages of deconstruction and decomposition. Here and there were very large printed words, “DIE! DIE!” followed by the intended victim’s name.
The victim was a student in the same school, two years older. He reportedly had no idea this younger boy, whose eroto-manic delusions had utterly gotten the best of him, felt this way about him. The patient’s target was captain of the football team, a major player on the debate team, highly ranked in his class, of a well-known and popular local family, and apparently destined for great things, not least of which was having the most popular girls in school hanging off both arms.
This younger boy was not popular. He was homely and overweight, suffered from psoriasis and acne, and was withdrawn and isolative. He had few if any friends. His parents had put him in therapy for what they saw as depression related to his sexual orientation. It was clear over the weeks we had him in the hospital, however, that his depression was complicated by significant delusional thinking. He believed he in fact had had some sort of relationship with this other boy.
These delusions, in fact, were so intense, that our patient initially believed the older boy impregnated him. More importantly, and frighteningly, he believed he had been most grievously wronged by this boy. We never did learn what this great insult was. But, in lieu of his love/hate-object, he made frequent threats against his perceived unborn baby. He was determined to make “the father” pay for the perceived transgression.
By all accounts, otherwise, the older boy had no idea this younger boy even existed. Again, we kept the patient as long as we legally could. He did seem to improve with the combination of medication and “milieu therapy.” Eventually, we had no reason to keep him. His parents wanted him home; he wanted to go home. He was different than the young man in the first case, in that no one really believed he would now actually harm anyone. He seemed to have developed some insight, and he eagerly approached therapy. He had been in the hospital for nearly three months.
My supervisors, in consultation with the hospital’s legal team, debated long and hard over whether Tarasoff needed to be invoked in this situation. It was illuminating to learn just how gray this area is. The legal team was mostly noncommittal. But eventually, and at the hapless trainee’s (namely, my) expense, my clinical supervisors came to view this opportunity to invoke Tarasoff as a “teaching moment.”
I notified the local police where this boy lived. I notified, with parents’ permission, the school administration. (The parents did not want their son to transfer to another school—our first, most insistent, and best recommendation.) And then I had to call the older boy’s parents.
A difficult conversation
“Hello? Mrs. Smith?”
“Yes.”
“Yes, hi. My name is Dr. Martin, and I’m calling from the hospital. You don’t know me, but I’m calling about your son.”
“Oh, my goodness, what about him? Is he okay?”
“Oh, yes. And I do apologize. He’s not here. In the hospital, I mean. In fact, I’ve never met him.”
“What is this about, Doctor?”
“Mrs. Smith, I am required by law to inform you that we have a patient here who will be discharged tomorrow, and this patient has made repeated homicidal threats toward your son.”
“Is this some kind of joke?”
“No, no, Mrs. Smith. I work on the psychiatric unit here at the hospital, and we have been working with this patient for months now. It is our opinion that this patient is no longer dangerous, but we are required by law to inform you of the threats made earlier to your son.”
“Who is this person?” I could hear the panic.
“I cannot tell you that.”
“What do you mean, you ‘can’t tell me that’?!”
“I apologize, Mrs. Smith, and I know this is awkward—”
“No, no, no, no. You call me out of the blue, tell me you’re from a hospital, and then tell me you’re about to release a patient who has made threats to kill our son?! And worse, you tell me you cannot let me know who this person is!”
I had no response to that.
“You’ve got a lot of nerve, Doctor. Do you know who my husband is?”
“Ma’am, I once again apologize; and believe me, if it were up to me, we wouldn’t be having this conversation, but—”
“How dare you! How dare you call me like this! I’m calling our attorney right now! What did you say your name is?! We are going to find out who this psychopath is, and we are going to be sure this nutcase is not allowed anywhere near the school!”
“I have already notified the local police.”
“So they know the name of this psycho.” (I believe this was a statement).
“I’m going to call Bob right now. And you, Doctor so-and-so, believe me, you haven’t heard the last of this.”
That, in fact, was the last I heard of her, and honestly, I totally saw her point.
Conclusion
In the emergency department setting, we mostly turf cases in which there is a question of invoking Tarasoff. In other words, we commit patients to the hospital and let the inpatient folks deal with it. We work under a (creative) assumption that by doing so, we absolve ourselves of the duty to warn.
But again, I’ve never gotten a straight answer on that one either.
Dr. Martin is Director of Medical Psychiatry at the Newton-Wellesley Hospital in Newton, MA, and a Clinical Assistant Professor of Psychiatry at Tufts University School of Medicine in Boston.
Psychiatric Malpractice Grand Rounds: The Tarasoff Dilemma
Forensic psychiatrist and Editor in Chief Emeritus of Psychiatric Times, James L. Knoll IV, MD, weighs in on a duel case report: To Invoke or Not to Invoke: Tarasoff Is the Question, by Elliott B. Martin Jr, MD.
Thou shalt not stand idly by the blood of thy neighbor. -Leviticus 16
Psychiatrist Elliott Martin, MD, graciously provides us with two rich clinical scenarios and notes the understandable confusion, anxiety, and ethical conundrum that may arise when the Tarasoff conflict is “invoked.” The cases seemed contentious and perhaps ambiguous to Dr. Martin—not all uncommon for Tarasoff-type scenarios. In his case examples, Dr. Martin refers to the Tarasoff duty as a duty to warn, and so let us take a moment to clarify this often misunderstood concept.
It has been my experience that confusion persists regarding the meaning and use of the terms duty to warn and duty to protect. This may be partly due to the fact that there were two Tarasoff decisions. The first Tarasoff decision in 1974 created a duty to warn in California and was based on the special relationship between therapist and patient.1 This first decision was unprecedented, and quite upsetting, to therapists due to its legal compromise of patient confidentiality. An oft-quoted line from this first Tarasoff decision made it clear that the Court was concerned with social policy: “The protective privilege ends where the public peril begins.”
In “Tarasoff II,” the California Supreme Court reheard the case, noting the plaintiffs’ argument that therapists failed to exercise reasonable care to protect Tatiana Tarasoff. Although the police were warned, no other steps were taken such as detaining Poddar or warning Tatiana of the danger. In its 1976 ruling, the Court replaced duty to warn with a duty to protect. The famous quote from Tarasoff II, which was adopted by many states across the country, made the change clear: “When a therapist determines or 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 from danger.”
Initially, there was concern that this exception to confidentiality would have a disastrous effect on psychiatric practice, despite the fact that most therapists had embraced such a duty before the Tarasoff ruling. Over time, it became clear that the concerns about the potential loss of confidentiality did not have an adverse impact on psychiatric practice. In 2013, after decades of misunderstanding, California passed legislation that unambiguously established a sole duty to protect. The California statute removed all references to duty to warn and provides a “definitive clarification.”
The persisting confusion among clinical psychiatrists about the duty to protect is understandable given that: 1) there are no widely accepted clinical guidelines to follow; 2) the duty varies by state, and 3) individual states’ duties have changed over time according to case law and/or state statute.
Although Tarasoff applied only in California, the ruling had a national reverberation. The duty to protect articulated in Tarasoff was subsequently interpreted more broadly by other courts throughout the US. One of the broadest interpretations occurred in the 1980 case of Lipari v. Sears, Roebuck & Co. This case involved a VA patient who shot strangers in a crowded nightclub, without ever threatening a specific person, and one month after terminating psychiatric treatment. The court rejected the Tarasoff limitation to an identified victim, imposing not only a duty on therapists to predict violence but also a duty to protect unidentified victims in the general public.
Similar cases in the wake of Tarasoff eventually led to strong objection to such legal expectations. A remarkable example of this was the case of Naidu v. Laird, which further expanded the duty to unidentified victims and unintentional harm. The case involved a patient with schizophrenia who killed another man in a motor vehicle crash. The patient’s psychiatric history included violent behavior, ramming a police car with his automobile, and driving off the road at high speed. The Supreme Court of Delaware held that five and a half months after a hospital discharge was not too long a period to support a finding of negligence when a psychiatrist was found liable for failing to foresee a patient’s potential to act violently towards the general public. Two decades after Tarasoff, courts around the country began to reflect ambivalence about the extension of the duty to protect.
As a result, some case law shifted to require that the threat be clearly made and that the duty extended only to reasonably foreseeable victims—not to the general public. Many states subsequently adopted statutes known as “Tarasoff-limiting statutes,” which gave specific criteria (ie, a credible threat made against an identifiable victim). Duty to protect statutes have been passed in all but 13 states.
When faced with a potential duty to protect in a clinical scenario, the first step is to become familiar with the specific Tarasoff duty in one’s state, as well as any evolving case law which may create nuances in how the duty should be carried out. The precise language specifying the duty in Dr. Martin’s jurisdiction will be critical. For the sake of discussion, let us note that states with mandatory duty to protect statutes contain language that can often be distilled down to two criteria: 1) an explicit, realistic threat, 2) against an identifiable person.
Turning to Dr. Martin’s first case, it was decided that there was an ethical and clinical duty, despite the lack of a legal duty to breach confidentiality. Dr. Martin goes the distance—handling an extremely difficult meeting with his patient’s mother. His empathic interaction and warning to her were clearly performed in good faith. Such interactions, particularly when well documented, are extremely likely to be viewed favorably by a jury in the event of a lawsuit. Further, one must imagine there may have been a greater potential for a lawsuit had the mother not been warned in such a compassionate, patient manner.
While the court and forensic specialists were understandably focused on whether the criteria were met for a legal duty, Dr. Martin opted to address his ethical and clinical duties. This was an acceptable option, particularly in jurisdictions that have a permissive, as opposed to a mandatory, duty to protect. Yet another option, depending upon the clinical circumstances of a case, might be for the psychiatrist to collaborate with the patient to carry out the warning. This would involve a clinical interaction in which it is explained to the patient that the psychiatrist wishes to act in the patient’s best interest (which clearly involves the patient not being arrested for a violent crime). It would be ideal for the psychiatrist and patient to make the warning together if the patient gives permission and is willing to cooperate. In cases where the patient refuses to cooperate despite a therapeutically communicated explanation, and the patient also does not meet civil commitment criteria (eg, the threat flows from antisocial personality disorder), the psychiatrist may then inform the patient that a warning will be made in his or her best interests and per legal duty.
In his second case, Dr. Martin describes what the stalking literature refers to as an Intimacy Seeking stalker who suffers from an erotomanic delusion.13 Making matters more complicated is the presence of a bizarre delusion (believing he was impregnated), as well as the patient’s strong desire for revenge towards his “love/hate object.” This latter element of the case adds significant risk and may be considered a “high-risk psychotic phenomenon” according to the Stalking Risk Profile—a structured professional judgment instrument intended to assist in the assessment of the type and level of risk in stalking cases.
Other risk factors per the stalking literature that Dr. Martin describes include the patient’s persistent and elevated level of anger and strong paranoid ideas. Indeed, Intimacy Seeking stalkers with erotomanic delusions tend to be impervious to the threat of criminal sanctions and may even regard court appearances and imprisonment as the “price of true love.” In cases of erotomanic stalkers who delusionally believe a relationship already exists with the victim, there is the risk that stalkers may become jealous due to misperceptions of “infidelity” on the part of the victim. Though the overall risk is lower than stalkers of former intimate partners (Rejected Type stalker), erotomanic stalkers can occasionally be responsible for extreme violence.16
Dr. Martin gives clear data for us to consider when we turn towards an analysis of the duty to protect scenario. For this second case, we find clear threats (both verbal and written) made against a readily identifiable victim (a classmate in his school). Having confirmed that the two relevant criteria are met, the psychiatrist then has a number of intervention options to consider, depending upon the clinical scenario and statute. Note that we have not yet reached a need to carry out the duty to protect by breaching confidentiality. Indeed, the duty to protect does not inexorably demand a call to police and/or the identified victim. First, a careful consideration of the available options should take place. These options most often include:
- Hospitalization (or escort to a hospital emergency department for evaluation)
- Notifying police
- Warning the potential victim
- Increasing the frequency of outpatient appointments
Breaching confidentiality may be viewed as a last option after all other therapeutic options have been exhausted. This will always remain, in part, a clinical judgment call. However, one helpful guide is that confidentiality should be breached only if reasonable clinical efforts seem unlikely to provide adequate resolution, and harm to the victim remains foreseeable. When all reasonable options are untenable, consider that “trust”—not absolute confidentiality—is the foundation of the therapeutic alliance. Providing necessary protection “where self-control breaks down is not a breach of trust when it is not deceptive.”
Therefore, circumstances permitting, the psychiatrist should inform the patient about the decision to breach confidentiality. Psychiatrists can take comfort in knowing that they have little basis “to fear being sued successfully for a bad outcome if the clinical practice has been reasonable” and when the psychiatrist’s actions were motivated by concerns over the welfare of the patient and threatened third parties. Potential liability is further reduced when psychiatrists contemporaneously document their risk assessment and clinical rationale.
Contemporaneous documentation provides the most believable evidence that the psychiatrist was diligent in gathering facts prior to exercising clinical judgment. Thus, psychiatrists should document what options were considered, and the clinical basis for rejecting or proceeding with a particular option. Consultation with a psychiatric colleague, as well as hospital legal counsel, should be considered in difficult cases. Dr. Martin does precisely this, making liability very unlikely even if harm should occur to a third party.
Returning to the details of Dr. Martin’s second case, a strong argument could be made that the duty to protect was eliminated or became nonexistent (at the time of discharge) due to good psychiatric inpatient treatment. The patient’s return of “insight,” clinical improvement, and willingness to adhere to treatment were all-important risk-reducing factors. Although it was not specified, I am interpreting Dr. Martin’s statement that “we had no reason to keep him any longer” to mean that the patient was no longer endorsing an explicit, realistic threat against the identifiable third party.
While such cases leave psychiatrists with many lingering concerns, I would frame the situation differently than saying we “turf” such cases or make “(creative) assumptions.” Rather, I would suggest that we appropriately and skillfully handle such cases in hopes that the inpatient team will be able to resolve the situation with good psychiatric care. In this manner, the “baton” of the duty is carefully handed forward until there is either a resolution of the danger, or the duty must be carried out in accordance with the relevant laws. Note that none of this implies that the mental health professionals working with the patient are not allowed to communicate the relevant risk issues with each other (with the patient’s consent).
Nor does any of the foregoing imply that the duty will never have to be revisited in the future, should the patient’s clinical condition worsens and the elements of the duty to protect resurface. Finally, I would add that I am unaware of any law or policy in which a potential victim cannot be told the name of the patient who has threatened harm in cases where it is decided that confidentiality must be breached. Indeed, failing to do so seems likely to enhance the level of fear in the third party, as well as defeat the purpose of the warning since the third party would not know who they need to avoid or seek protection from.
Concluding remarks
Psychiatrists’ duty to protect in the context of a patient 1) realistic threats toward 2) identifiable third parties is a well-established exception to patient confidentiality. The duty has foundations in clinical ethics and was acknowledged even prior to the time that the Tarasoff case established a legal duty. Psychiatrists should be familiar with the duty to protect laws in their own state. When a potential duty to protect scenario arises, it should be first addressed as a clinical issue, and an array of options considered prior to breaching confidentiality. It is quite possible that clinical interventions may eliminate the need to violate confidentiality entirely. The fact that the duty is, perhaps temporarily, eliminated should not prevent psychiatrists from remaining alert to its reoccurrence, communicating relevant risks to other treatment providers, and documenting a reasonable risk management plan. Even in the event of a tragic outcome and lawsuit, “judges and juries are likely to be more impressed by psychiatrists trying to do the most protective thing for patients as opposed to merely protecting themselves.”
