Court responses to Tarasoff statutes

Twenty-three states have enacted Tarasoff statutes applicable to psychiatrists. Since the first such statute was enacted in California in 1985, a significant number of courts in states with this and similar statutes have reviewed Tarasoff-type claims. This article reviews courts' analyses in 76 such cases. There were five basic categories identified, including cases that (I) did not reference the statute; (2) referenced the statute, but did not analyze it; (3) referenced the statute, analyzed it, and found it created a duty; (4) referenced the statute, analyzed it, but found it did not create a duty; and (5) referenced the statute in the context of testimonial privilege. Review of these cases revealed that even in states that have Tarasoff statutes, clinicians must continue to rely on their clinical and ethical judgment, rather than statutory guidance, when considering potential protective disclosures or future drafts of protective disclosure statutes.

A physician's duty to warn family members of genetic risks: limiting the importance of Tarasoff

This paper addresses whether a physician should be held liable for failing to warn family members of potential risks of genetic disease. Resolution of this complex issue requires consideration of physician-patient responsibility, the psychological impact of the warning, the efficacy of genetic testing, and the need to protect the physical well being of family members. The paper concludes that application of the Tarasoff factors, which focus primarily on the foreseeable aspect of the threat and the identifiable nature of the third parties, is an insufficient means for determining whether this duty to disclose exists. Instead, in addition to the Tarasoff factors, a physician must consider a number of case-specific factors in deciding whether the benefits of disclosure outweigh the psychological effects of knowing of the disease and the public policy reasons behind physician-patient confidentiality. Likewise, a court should consider these same factors as applied to a hypothetical "reasonable physician" before concluding that a specific physician has a duty to warn family members potential of genetic threats.

Judicial expansion of the Tarasoff doctrine: doctors' dilemma

The Tarasoff case established that a psychotherapist has a legal obligation to breach a patient's confidence in certain circumstances. The subsequent judicial expansion of the original Tarasoff doctrine raises additional legal issues that confront a psychotherapist in a Tarasoff-type dilemma where the law holds the protection of third parties outweighs the patient's right to confidentiality.

Tarasoff, the doctrine of special relationships, and the psychotherapist's duty to warn

Although the legal doctrine of special relationships was a cornerstone of the Tarasoff decision, the authors argue that the conceptual relationship among that doctrine, the documented inability to predict violence, and the duty to warn is such as to preclude the foundation of a duty to warn on the doctrine of special relationships.

Violent patients and the Tarasoff duty in private psychiatric practice

The author reports the results of interviews with 34 psychiatrists who practiced privately outside major metropolitan areas. The psychiatrists discussed experience with violent patients, and their knowledge of, attitudes toward, and experience with the Tarasoff duty. Most psychiatrists were aware of the duty and accepted it as an ethical responsibility. In their response to Tarasoff, this sample was not substantially different from a national sample of psychiatrists practicing in metropolitan areas. Violence toward psychiatrists was more common in office practice than elsewhere. Tarasoff cases in office practice more often ended in violence or in a ruptured therapeutic relationship than Tarasoff cases in other settings. The author concludes that the threat of violence is a greater problem for the office practice of psychiatry than has previously been described.

Tarasoff down under: the psychiatrist's duty to warn in Australia

The authors discuss the differences between the U.S. and Australia in legal approach and in the codes of medical ethics to the issues of medical confidentiality and disclosure as represented by the Tarasoff case. It is argued that in Australia, a psychotherapist would not be justified in breaching his duty of confidentiality towards a patient. The ethical codes that govern clinical practice in Australia, and the common law, focus primarily upon the therapeutic relationship between the doctor and the patient, virtually excluding any considerations extraneous to that relationship.

Genetic diagnostic information and the duty of confidentiality: ethics and law

The article explores in the context of the duty of confidentiality the ethical and legal dilemmas posed for the doctor holding a patient's genetic information where there are two competing interests — the interest in protecting the confidentiality of the patient and the interest in protecting a third party from harm. The discussion is confined to third parties that are either genetically related to the confider or share a reproductive interest with him/her.

It is submitted that it is desirable in exceptional circumstances to give the doctor a discretion to disclose confidence to a third party on the grounds of preventing harm. However, the circumstances for so disclosing need to be carefully circumscribed. Further, it is submitted that there is little support for imposing a duty to disclose.

HIV-infected psychiatric patients: beyond confidentiality

The AIDS epidemic calls for an ethical analysis of conflicting obligations surrounding HIV-infected psychiatric patients and confidentiality, as well as issues that go beyond confidentiality. Although laws pertaining to HIV infection have been enacted in a number of states, these statutes leave much discretion to health professionals. The ethical principle known as "the harm principle" can permit disclosure of confidential information and detention or isolation of psychiatric patients who pose a threat of infecting other patients. From an ethical point of view, however, the circumstances under which traditional protections may be weakened or abandoned remain limited.

The legal perils of psychotherapeutic practice (part II): coping with Hedlund and Jablonski

This article addresses itself to the willingness of courts of law to hold psychotherapists accountable for the damage done by their patients. Most especially, it examines the implications of the recently decided Hedlund and Jablonski cases and of their progenitor, Tarasoff, recommending a course of action for coping with the problems these cases create.

The evolution of Tarasoff: recent developments in the psychiatrist's duties to warn potential victims, protect the public, and predict dangerousness

Since 1976, several courts have found California's Tarasoff decision persuasive, requiring psychotherapists to warn potential victims of threats of danger posed by patients under therapists’ care. Other courts have found that confidentiality of the patient-psychotherapist relationship is paramount. Some courts have found a duty to warn is owed only to a specifically identified victim. When no victim has been identified, other courts still have found a duty of the psychotherapist to exercise reasonable care to protect the public. Although some courts have held that a duty exists when a psychotherapist should have predicted violence, but did not, no clear standard for reasonableness in predicting dangerousness has emerged. Courts have looked to expert testimony regarding such predictions even though the APA and other authorities maintain that no such standard exists.

Mental health professionals and assisted death: perceived ethical obligations and proposed guidelines for practice

I have three purposes in this article: (a) to briefly review the legal obligations a mental health professional has when working with a client who is talking about taking some action that could lead to his or her death, (b) to clarify the positions of the 4 major national mental health organizations regarding the acceptable roles of their members with clients who are discussing the possibility of receiving assisted death, and (c) to propose a set of guidelines for practice for mental health professionals working with clients who are considering assisted death that comport with the various laws and codes of ethics.