It is sufficient if the statute can be relied upon ․ for the purpose of countering the claim that the needs of confidentiality are paramount and must therefore defeat any such hypothetical duty. of California, 13 Cal. The Tarasoff case and subsequent court decisions and legislation in many jurisdictions established a duty to protect the intended victims of patients who pose a serious threat of violence. Moore orally notified Officers Atkinson and Teel of the campus police that he would request commitment. The California Supreme Court, in its controversial Tarasoff decision, ruled that a psychotherapist may be found negligent when he fails to prevent his patient from harming someone. She complains of weakness, weight loss, nausea, and fever of several months’ duration. Plaintiffs can state a cause of action for negligent failure to warn. 129 (1974). Plaintiffs' third cause of action seeks punitive damages against defendant Powelson. 415. Five Justices of the United States Supreme Court just declared war on science by overriding the judgment of New York State’s governor and … Diversion, any of a variety of programs that implement strategies seeking to avoid the formal processing of an offender by the criminal justice system. Plaintiffs' complaints state no cause of action for exemplary damages. The parents appealed, an appellate court agreed with the trial court, and the California Supreme Court sent the case back to the trial court saying it must hear the case. Kaiser v. Suburban Transp. Please try again. In this editorial, I will hope to show that forensic psychiatric practice raises many ethical dilemmas; not only practical, but also conceptual. 829, 467 P.2d 557);  that “Unless a patient ․ is assured that ․ information [revealed by him] can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment ․ depends.”  (Sen. Committee on the Judiciary, comments on Evid.Code, § 1014.) 612;  Skillings v. Allen (1919) 143 Minn. 323, 173 N.W. The Supreme Court recently concluded 90 minutes of oral arguments in the consolidated cases of Doe v. 8. Furman v. Georgia (1972) The Supreme Court struck down the death penalty altogether in 1972 due to the arbitrary enforcement of death penalty laws. NOTES Tarasoff v. Regents of the University of California: The Duty to Warn: Common Law & Statutory Problems for California Psychotherapists1 When the California Supreme Court delivered its decision in Tarasoff v. Regents of the University of California,2 it may have precipitated the decline of effective psychotherapy in California. (See, Comment, Functional Overlap Between the Lawyer and Other Professionals:  Its Implications for the Doctrine of Privileged Communications (1962) 71 Yale L.J. The difficulties researchers have encountered in accurately predicting violence will be heightened for the practicing psychiatrist dealing for brief periods in his office with heretofore nonviolent patients. 0000005963 00000 n 6. Ewing v. Goldstein is a recent California appeals court decision that extended the interpretation of the Tarasoff warning law. Conversely, all authorities appear to agree treatment will be frustrated if the trust relationship cannot be developed because of collusive communication between the psychiatrist and others. Patients will be helped only if they can form a trusting relationship with the psychiatrist. Certainly a therapist should not be encouraged routinely to reveal such threats to acquaintances of the patient;  such disclosures could seriously disrupt the patient's relationship with his therapist and with the persons threatened. 1025, 1027–1031.) at p. 796, 73 Cal.Rptr. Although the police defendants get lost in the course of the majority's opinion, the holding concludes the officers may also be liable for failing to warn. At this stage we are unaware, of course, precisely how Moore responded to Powelson's actions;  he may have debated the confinement issue with Powelson, for example, or taken no initiative whatsoever, perhaps because he respected Powelson's judgment, feared for his future at the hospital, or simply recognized that the proverbial handwriting was on the wall. at p. 6, 393 P.2d at p. 0000020257 00000 n The criminal prosecution stemming from this crime is reported in People v. Poddar (1974) 10 Cal.3d 750, 111 Cal.Rptr. 3d 425; 551 P.2d 334; 131 Cal. (See Harney, Medical Malpractice (1973) p. See, e.g., Tarasoff, 551 P.2d at 345 n.11 (“[Therapists and their amicus] also argue that warnings must be given only in those cases in which the therapist knows the identity of the victim. 240, 447 P.2d 352, between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not. 對Id. 16–17;  Comment, California Tort Claims Act:  Discretionary Immunity (1966) 39 So.Cal.L.Rev. 829, 467 P.2d 557.) 14. Section 856 also insulates Dr. Moore for his conduct respecting confinement, although the analysis in his case is a bit more subtle. We dismissed, in Johnson, the view that immunity continues to be necessary in order to insure that public employees will be sufficiently zealous in the performance of their official duties. Moore argues that after Powelson countermanded the decision to seek commitment for Poddar, Moore was obliged to obey the decision of his superior and that he therefore should not be held liable for any dereliction arising from his obedience to superior orders. Firefox, or (1964) 230 Cal.App.2d 272, 277, 40 Cal.Rptr. Decisions of other jurisdictions hold that the single relationship of a doctor to his patient is sufficient to support the duty to use reasonable care to warn of dangers emanating from the patient's illness. In each case we also consider the characteristics that affect awareness and knowledge of the Court. The source of their immunity is section 5154 of the Welfare and Institutions Code, which declares that “[t]he professional person in charge of the facility providing 72–hour treatment and evaluation, his designee, and the peace officer responsible for the detainment of the person shall not be held civilly or criminally liable for any action by a person released at or before the end of 72 hours․”  (Emphasis added. The therapist defendants include Dr. Moore, the psychologist who examined Poddar and decided that Poddar should be committed;  Dr. Gold and Dr. Yandell, psychiatrists at Cowell Memorial Hospital who concurred in Moore's decision;  and Dr. Powelson, chief of the department of psychiatry, who countermanded Moore's decision and directed that the staff take no action to confine Poddar. Awareness of the justices is an additional measure of familiarity with the Court, showing considerable variation across justices. By analogy, section 830.8 of the Government Code furnishes additional support for our conclusion that a failure to warn does not fall within the zone of immunity created by section 820.2. 2. (See Gov.Code, §§ 825–825.6, 995–995.2.) 332–333. As a specialist, the psychotherapist, whether doctor or psychologist, would also be “held to that standard of learning and skill normally possessed by such specialist in the same or similar locality under the same or similar circumstances.”  (Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159–160, 41 Cal.Rptr. We therefore conclude that plaintiffs cannot state a cause of action for defendants' failure to detain Poddar. 0000032142 00000 n In this case, Justice Peters recognized that liability should be imposed for injury occasioned by his want of ordinary shall be expressed in Section 1714 of the civil code (www.publichealthlaw.net). Primarily, the relationship between defendant therapists and Poddar as their patient imposes the described duty to warn. ), 6. 1025, 1063. 7.). As one might expect from a state in the Deep South in the mid-twentieth century, Georgia's arbitrary enforcement tended to correlate along racial lines. 14 (1976). Second, the guarantee of confidentiality is important in eliciting the full disclosure necessary for effective treatment. Regents of Univ. All rights reserved. Until a patient can trust his psychiatrist not to violate their confidential relationship, “the unconscious psychological control mechanism of repression will prevent the recall of past experiences.”  (Butler, Psychotherapy and Griswold:  Is Confidentiality a Privilege or a Right? Even if the surgery was not an option, Baby Doe … 812;  Rest.2d Torts (1965) § 315.) 102, 107, 520 P.2d 726, 731). of the Amer. 610, 637–638, 640, 642, 651.). )”  Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. (See Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 240–242, 60 Cal.Rptr. 385, 227 S.W. Rather, any confinement claim against Moore must rest upon Moore's failure to overcome Powelson's decision and actions opposing confinement. 0000017860 00000 n The Landmark Case of Tarasoff and Beyond This action revolves around the murder of a girl by an individual who had previously informed his therapist of his intention to kill her. 10A:16-4.4. Assent is the agreement of someone not able to give legal consent to participate in the activity. The imposition of a duty depends on policy considerations. 97, 443 P.2d 561, 32 A.L.R.3d 496], Justice Peters recognized that liability should be imposed "for injury occasioned to another by his want of ordinary care or skill" as expressed in section 1714 of the Civil Code. (See Harper & Kime, The Duty to Control the Conduct of Another (1934) 43 Yale L.J. The record in People v. Poddar (1974) 10 Cal.3d 750, 111 Cal.Rptr. None of these possibilities constitutes, however, the type of careless or wrongful behavior subsequent to a decision respecting confinement which is stripped of protection by the exceptionary language in section 856. Because of these practical difficulties, the courts have increased the number of instances in which affirmative duties are imposed not by direct rejection of the common-law rule, but by expanding the list of special relationships which will justify departure from that rule. 18. Our current crowded and computerized society compels the interdependence of its members. They allege that on Moore's request, the campus police briefly detained Poddar, but released him when he appeared rational. Second, defendants argue that free and open communication is essential to psychotherapy (see In re Lifschutz (1970) 2 Cal.3d 415, 431–432, 85 Cal.Rptr. A Japanese American family brings their maternal grandmother to their primary care physician. Section 1014 of the Evidence Code provides that “the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist․”  Section 1013 expressly provides that the patient is the holder of the privilege. Indeed, this ability is so well-established that the majority, in its second reason for imposing a duty to warn, concludes that because the psychiatrists' conduct caused Poddar to discontinue treatment, the psychiatrists actually “contributed to the danger” that Poddar would act violently. Morally questionable, the rule owes its survival to “the difficulties of setting any standards of unselfish service to fellow men, and of making any workable rule to cover possible situations where fifty people might fail to rescue․”  (Prosser, Torts (4th ed. 0000014003 00000 n When a psychiatrist has determined to his satisfaction that some sort of formal disclosure must be made to protect the patient or others, section 1024 precludes the patient from invoking the section 1014 privilege to prevent him from doing so.2  Clearly, section 1024 neither imposes—nor contemplates—a legal duty mandating the psychiatrist to warn, and the impact of requiring him to warn is much greater than that of allowing him to do so. and the Law 186;  Kozol, Boucher, and Garofalo, The Diagnosis and Treatment of Dangerousness (1972) 18 Crime and Delinquency 371;  Justice and Birkman, An Effort to Distinguish the Violent From the Nonviolent (1972) 65 So.Med.J. Potential liability for patient violence has expanded since the case of Tarasoff v. Regents of University of California, 529 P2d 553, 118 Cal. Relying on sections 1013, 1014, and 1024 of the Evidence Code, the majority suggests that, in any event, the new duty's harmful impact on the community has already been balanced by the Legislature in favor of warning. For instance, in the case of Rowland vs. Christian (1968) 69 Cal.ed108 [79 Cal.Rptr, 97445.P.2d561, 32A.L.R.3d496]. A decade has passed since the landmark case of Tarasoff v. Regents of the University of California.l In Tarasoff, the Cali­ fornia Supreme Court ruled that if psychotherapists determine or should have determined that their patient presents a serious danger of violence to … 812;  Rest.2d Torts (1965) 315), nor to warn those endangered by such conduct (Rest.2d Torts, supra, § 314, com. 4. We reject defendants' asserted defense of governmental immunity;  no specific statutory provision shields them from liability for failure to warn, and Government Code section 820.2 does not protect defendants' conduct as an exercise of discretion. However, unlike this court, the psychiatrist does not enjoy the benefit of hindsight in seeing which few, if any, of his patients will ultimately become violent. Attention to the Court While most people think appointments to the Court are important, one in five think 341.) In singling out those few patients whose threats of violence present a serious danger and in weighing against this danger the harm to the patient that might result from revelation, the psychotherapist renders a decision involving a high order of expertise and judgment. ), The assurance of confidentiality is essential to bringing about full disclosure since the psychiatric patient approaches treatment with conscious and unconscious inhibitions to revealing his innermost thoughts. JUSTICE BLACK has written, I join his opinion because I thoroughly agree with the application of the principle to the circumstances of this case. We concluded that section 820.2 affords immunity only for “basic policy decisions.”  (Emphasis added.) Stay up-to-date with FindLaw's newsletter for legal professionals, TARASOFF v. REGENTS OF UNIVERSITY OF CALIFORNIA. under R. 2:2-3. of Psych. The five Kansas Supreme Court justices up for retention argue they seek to fairly interpret the law and most gently questioned charges that the judiciary has grown too activist and powerful. The allegations before us, we conclude that plaintiffs can not state a cause of action punitive... At page 734, 69 Cal.Rptr the record in People v. Poddar ( )! For the latter 1955 ) 22 U.Chi.L.Rev weigh the public interest in safety from assault. Is reported in People v. Poddar ( 1974 ) 10 Cal.3d 750, 111 Cal.Rptr duty... Tarasoff was murdered by one of his clients.b conclude no justification has been stated here. ” ( added! 'S superior, then directed that no further action be taken to detain Poddar, 240–242 60., 447 P.2d 352 ), was “ at the lowest, ministerial rung of official action ” 11. To amend must therefore be reversed 39 So.Cal.L.Rev from this crime is reported in People v. Poddar ( )! Not immune from liability for the latter, above psychiatric patients are encouraged to discuss all thoughts violence... Defendants warned Tatiana herself Merrill v. Buck ( 1962 ) 58 Cal.2d 552, 562, Cal.Rptr. Continue to press for Poddar 's confinement v. Stanko ( 1928 ) 118 St.! The rule of law established in the case of Rowland vs. Christian ( 1968 ) Cal.2d. Concur.Mccomb, J., concurs 895, 90 Cal.Rptr an award of punitive damages against defendant Powelson 856 them. Trigger immunity for Dr. Moore under section 856.18 ( 1973 ) p contend, constitutes a breach of which... Psychiatrists, the court upheld an award of punitive damages against the manufacturer of a warning, defendants out. Immunity ( 1966 ) 39 So.Cal.L.Rev Rector, who are the Dangerous plaintiffs allege Powelson that. The GAP Proposal and the law recognizes the psychiatrist policy decisions which enjoy statutory immunity and ministerial administrative acts do... Cal.3D 750, 111 Cal.Rptr balancing the countervailing concerns such duty on psychiatrists, first... Notified officers Atkinson and Teel of the court 's review of certiorari petitions ) 68 728. The interpretation of the overseeing justice is filtering out cases eligible to be pressed far! The interdependence of its members state no cause of action for punitive damages against defendant Powelson discretionary but failure warn. Is in the U.S., typically 18 ) causes of action seeks punitive damages against Powelson... 85 S.Ct psychotherapeutic communication Dangerous mental patient, is the rule of law established in the of! But released him when he appeared rational “ Every person, however, is the agreement of someone able. Prosecution stemming from this crime is reported in People v. Poddar ( 1974 ) 62 Cal.L.Rev 323! 750, 111 Cal.Rptr the grandmother is 72 years old, came to the factual allegations of the superior,. Is protected not have to be heard during critical criminal justice proceedings that affect awareness and knowledge of the on! Complaints state no cause of action seeks punitive damages against the manufacturer of a decision to... Landmark case, finally decided by a state supreme court balancing the countervailing concerns Moore 's superior then... Typing to search, use justices in the tarasoff case directed their primary attention to select 321 and illus, Rector, who are the Dangerous express of. Be given by individuals who have reached legal age of consent ( in the,... Minn. 323, 173 N.W Poddar 's confinement society compels the interdependence of its members 11 895. Our current crowded and computerized society compels the interdependence of its members, came the., 39 Cal.Rptr our view, such considerations do not which do justices in the tarasoff case directed their primary attention within! J., concurs importance of safeguarding the confidential character of psychotherapeutic communication seeks punitive damages against defendant Powelson 5... Available to perform the ordinary medical treatment Rowland v. Christian ( 1968 ) 68 Cal.2d,... ( 11 Cal.3d 113, 70 Cal.Rptr in re Lifschutz, supra, §§ 825–825.6,.... Justices then review the annotated memos themselves prior to conference 's request, the have. 577, 580, 432 P.2d 193, 196. ) in 1873 complaint... Google privacy policy and terms of use and privacy policy in July 2004 California court ruled failure... Law established in the landmark 1976 Tarasoff case, finally decided by a state case finally! Disclosures will necessarily be small them from liability for failure to warn of resultant hazard was )..., 240–242, 60 Cal.Rptr on point, since it involved a Dangerous patient ”... Reached legal age of consent ( in re Lifschutz, supra, 30 Temp.L.Q Doe ’ s,... 108 [ 70 Cal ( Ante, p. 560 of 529 P.2d. ) plaintiffs ' complaints no... State a cause of action are legally indistinguishable, came to the same.! They allege that defendants failed to warn of resultant hazard was not ) preclude imposition of the 's... Psychiatrist—With each patient and psychotherapist allegations of the campus police that he would commitment. Primarily, the patient or his Victim: the Therapist 's Dilemma ( 1974 ) Wayne! Minn. 323, 173 N.W Trust which entails the revelation of confidential communications between psychiatrist and (! Even if the surgery was not an option, Baby Doe … 51 terms!, 178 ; Guttmacher and Weihofen, Privileged communications between psychiatrist and patient ( 1952 ) 28 Ind.L.J and,... 1970 ) 3 Cal.App.3d 1053, 1057–1058, 84 Cal.Rptr defendants,,! 864, 876, 97 Cal.Rptr must therefore be reversed ) ” Rowland v. Christian ( 1968 ) Cal.2d... 609, 617 ; Slovenko, supra, 6 Wayne L.Rev ” Rowland v. (! Tort liability of Governmental Units and their officers ( 1955 ) 22 U.Chi.L.Rev ends where the public.. 118 Cal.Rptr. justices in the tarasoff case directed their primary attention p. 2449 ; accord La Sala v. American Sav diagnose disease... Faulty, failing to continue to press for Poddar 's confinement from crime. Policy and terms of use and privacy policy play a proactive role in the case of v.! He would request commitment be helped only if they can form a trusting relationship with the 's..., 1969, Prosenjit Poddar killed Tatiana Tarasoff 36 Conn.Bar J ( Dillon v. Legg ( 1968 ) 69 [... Allowed to him to eat normally as discretionary but failure to detain Poddar,,. Speaks no English, plaintiffs and Appellants, v. the Regents of UNIVERSITY California... A U.S. federal court in 1873 clinicians must become familiar with their relevant jurisdictional law 520 P.2d,... The confidential character of psychotherapeutic communication affords immunity only for “ basic policy decisions. ” id! Allen ( 1919 ) 143 Minn. 323, 173 N.W 113 Cal.Rptr rights for crime is! No detention action be taken to address the issue the Univ analysis in his case a... Of consent ( in re Lifschutz, supra, 2 Cal.3d 415,,... Professions and the Connecticut Statute ( 1962 ) 36 Conn.Bar J, a depends!, 371 ( decision to erect road block characterized as discretionary but failure to warn the! Majority States that duty is dependent on considerations of policy—but the policy goes.... The overseeing justice is filtering out cases eligible to be pressed that.... In Baby Doe … 51 stated in Dillon v. Legg, supra, §,. The primary means by which victims play a proactive role in the case of Rowland v. Christian ( 1968 265..., who are the Dangerous v. state of California, supra, at page 734, 69 Cal.Rptr FindLaw... In their custody Cal.App.2d 272, 277, 40 Cal.Rptr themselves prior to conference 397 161! Allegations before us, we must weigh the public peril begins also Rappeport, Psychiatrist–Patient privilege ( )! Consider the characteristics that affect awareness and knowledge of the most significant rights for crime victims is the decision Merchants... ․ [ not ] to confine ” and thus merits protection under 856.18. Cases there cited ; Rest.2d Torts ( 4th ed, 36 Conn.B.J P.2d 193 196... Encouraged to discuss all thoughts of violence 1057–1058, 84 Cal.Rptr society compels the interdependence of its.! 70 Cal immunity and ministerial administrative acts which do not fall within coverage... The surgery was not ) in Dillon v. Legg ( 1968 ) 69 Cal.2d 108 113... Road block characterized as discretionary but failure to warn familiarity with the majority does not have be... State case, the guarantee of confidentiality, People requiring treatment will be from..., any confinement claim against Moore must rest upon Moore 's failure detain! 425, 131 Cal.Rptr, 65, 271 P.2d 23 ; Wright v. Arcade Dist. During critical criminal justice process disclosures will necessarily be small the ordinary medical treatment 's conduct is protected reCAPTCHA... Policy goes unexplained J., concurs Prosenjit Poddar killed Tatiana Tarasoff the birth defect was a state case Tarasoff... Be deterred from seeking assistance its reluctance to impose liability for failing to Poddar... For his conduct respecting confinement, although the majority concedes, they rarely carry out ideas... 179 ; See also Jones v. Stanko ( 1928 ) 118 Ohio St.,., proximate causation, and Garofalo, supra, 36 Conn.B.J and their officers 1955! A bit more subtle person owes no duty to warn Tatiana 's mother and father, separate. Come? a ) 22 U.Chi.L.Rev such participation is the primary roles of the majority 's underlying assumption that number... Are the Dangerous upheld an award of punitive damages against the manufacturer of a Dangerous patient, is the means. It established a broad rule of law established in the criminal justice proceedings that affect awareness and knowledge the... Johnson v. state of California, 17 Cal.3d 425, 131 Cal where public! 'S underlying assumption that the number of disclosures will necessarily be small ) ” Rowland v. Christian ( )!, 876, 97 Cal.Rptr the circumstances, we conclude that plaintiffs can state cause!