[Summer 2007; Vol. 33, No. 3; Pg 4]
Shrink
Rap is a psychiatry blog run by three softly disguised MPS members.
In the weeks following the tragedy at Viginia Tech, discussions were
posted about a clinical situation involving a gun purchase by a violent patient,
moral and ethical choices, and a review of the Tarasoff laws.
The following is adapted from a post entitled Tarasoff Overview &
Inservice by ClinkShrink.
In the period following the tragedy at Virginia Tech there has been a lot of interest in and comments about public safety and the mental health professional's duty to warn or protect. Some readers commented and cited the Tarasoff case, which made me think a quick inservice was in order. Many of our readers aren't mental health professionals or aren't American, so it's not really fair to leave them without any context for the discussion. Also, many American mental health professionals have heard of Tarasoff but may not really be aware of the limitations or extent of this decision.
First some background:
In 1969 a Berkeley college student, Prosenjit Poddar, became enamored of co-ed
Tatiana Tarasoff. He pursued her to the extent that police got involved. They
detained Poddar and referred him to the college counseling center where he was
seen by a psychologist. The psychologist consulted with his superior at the
center, and both decided that Poddar did not need to be hospitalized. Poddar
later shot and killed Tarasoff.
Tarasoff's family sued the University, the police, and the mental health professionals for failing to hospitalize Poddar. The suit was originally dismissed by the California Supreme Court (in a case now known as Tarasoff I) because all of the defendants were government employees who were acting within their discretion regarding the hospitalization decision. Thus, they were covered by government immunity. Also, at the time no mental health professional had any duty to a third party---the clinician's only duty was to the patient. The suit was dismissed without prejudice, meaning that the plaintiffs were free to refile the suit on other grounds. The California Supreme Court hinted in their opinion that if the suit had been filed on the grounds of failure to warn or protect the defendants would not be immune from suit. The plaintiffs took the hint and refiled on these grounds.
This led to the case known as Tarasoff II, in which the California Supreme Court found for the first time that mental health professionals had a duty to protect (not just warn) third parties of danger from their patients.
Now the thing to remember about case law is that opinions are only binding on the regions that the appellate court has jurisdiction over. The Tarasoff cases were decided by the California Supreme Court and were binding only in California. Only the U.S. Supreme Court can issue opinions that apply to the entire country. So how did this idea spread across the country?
If I were a complete cynic I'd answer: Blame it on the lawyers. Being only a partial cynic, my answer is that the creation of this new duty created a new fertile ground for recovery in case of injury. A flurry of cases in other states followed the reasoning in Tarasoff and laid the groundwork for mandatory warnings in other jurisdictions. A nice overview of the current state of national Tarasoff laws can be found on-line in Court Responses to Tarasoff at http://www.jaapl.org/cgi/reprint/32/3/263.pdf (Katchigian and Felthous)
Fortunately,
the Shrink Rappers live in Maryland. Our professional organization took a
proactive approach to this impending issue and crafted a Tarasoff duty by
statute rather than waiting for it to be created through a lawsuit. It was
designed thoughtfully and narrowly so the duty for our clinicians is not as
broad as that which is implied in the California cases. It can be found in
Courts and Judicial Proceedings and it grants immunity for certain actions.
The
key points compared to the Tarasoff cases are that the statute requires imminent
danger to an identifiable victim. Clinicians are not required to foresee danger
to the general public, nor are they required to predict dangerousness into the
indefinite future. Clinicians are given the discretion either to warn the victim
or to carry out a protective plan; hospitalization is not mandatory. Regardless,
a decision to break confidentiality is shielded from liability if the clinician
is acting in good faith.
Links:
Shrink Rap: http://psychiatrist-blog.blogspot.com/
Tarasoff
Overview & Inservice: posted 5/8/07 by ClinkShrink: http://psychiatrist-blog.blogspot.com/2007/05/tarasoff-overview-inservice.html
Johnny Get Your Gun:
posted 5/7/ 07 by Dinah: http://psychiatrist-blog.blogspot.com/2007/05/johnny-get-your-gun.html
Moral &
Ethical Choices: posted 5/9/07 by Roy: http://psychiatrist-blog.blogspot.com/2007/05/moral-and-ethical-choices.html