Future of the "'Duty to Protect ": Scientific and Legal Perspectives On Tarasoff's Thirtieth Anniversary. The Duty to Protect: Four Decades After Tarasoff Ahmad Adi, M.B.B.S., M.P.H., Mohammad Mathbout, M.B.B.S. Nevertheless, Jablonski’s previous history indicated that he would likely direct his violence against Kimball. 1991. In a mass murder situation, there could be no identifiable victims to warn, but there could be intended/foreseeable victims to try and protect. When privy to such information, you must conduct a thorough assessment of the individual and his or her situation to determine whether you reasonably believe there is a serious risk of loss of life or grave bodily injury to another person.vii The concept of “loss of life” is self-evident, and the concept of grave bodily injury includes such injuries as loss of consciousness, concussions, fractures, wounds requiring extensive suturing, loss or impairment of bodily members or organs, and serious disfigurement.viii In this article, I will use the generic word “violence” as shorthand for the concepts of loss of life and grave bodily injury. If, after assessing, you believe your patient is reasonably likely to commit violence, the duty to protect any intended victims has been triggered, and it is time to move to the second step of the Tarasoff Two-Step, which is discharging the duty to protect. If possible, referring the patient for evaluation by a psychiatrist or psychologist is also prudent. Refer to the scholarly literature on these issues, and even include copies of relevant materials in the patient’s file. Background 2.1. xi Simon, M.D., Robert I. Psychiatry and Law for Clinicians. Remember, one of the keys to these cases is the proper assessment of the individual, and you can only assess individuals who are actual clients. 2. 21:1. In discussing this issue, the California Supreme Court in Tarasoff explained that: “We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient presents a serious danger of violence. Want to read all 2 pages? Potential victim = “intended victims” 3. Poddar, started therapy sessions through the university's mental health services. He had diagnosed Poddar with “paranoid schizophrenic reaction, acute and severe,” and he attempted to have Poddar hospitalized on a 72-hour hold. On October 27, 1969, Poddar went to the Tarasoff’s home and found Tatiana alone. In fact, the earlier phrase was accurate, the later one rhetorical and misleading. Submit an article Journal homepage. If you reasonably believe your patient would go out and commit mass murder, you would have a duty to protect under Tarasoff the Case because intended victims can be foreseeable victims, although such victims cannot be identified specifically; however, you would not have the immunity provided by Tarasoff the Statute because you do not have identifiable victims, only intended/foreseeable ones. While in therapy, Poddar, expressed his intentions to kill Tatiana Tarasoff. x Ewing v. Goldstein (2004) 120 Cal.App.4th 807 There is a standard of care to meet, and if you meet it, then you should not be held liable for violence wrought by your patients. 7. The duty has foundations in clinical ethics and was acknowledged even prior to the time that the Tarasoff case established a legal duty. Tatiana, however, did not reciprocate Poddar’s feelings. To avoid civil liability for the violent actions of patients, therapists must understand and be able to do both steps well.vi, Step One of the Tarasoff Two-Step: Assessing for Dangerousness. The bottom line is this: Assess, assess, assess (especially utilizing some form of standardized instrument), and then evaluate thoughtfully the information you learn from the assessment (drawing upon your education, training, and experience). [3] This case determined that the clinician has the duty to warn an identifiable victim. There is a “dance” that all therapists must know how to do, and do well, which means smoothly executing the “steps” involved, and not tripping over one’s feet in the process. Sometimes a person’s history of violence, coupled with present instability in that person’s life, may be enough to trigger the duty to protect under Tarasoff, even in the absence of a stated threat to kill or injure. It is possible, even likely, that although the patient said he would kill his former boss, an assessment of the patient reveals that there really is not a serious risk of violence against the boss because the patient was merely jesting or talking tough. Consulting with colleagues who are knowledgeable about these issues is always prudent and recommended. In some cases, hospitalization may be most appropriate. Either you believe your patient is reasonably likely to commit violence, or you don’t: Of course, your records need to reflect these decisions and document the rationale for them. To the contrary, the therapist’s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger.”. The duty has foundations in clinical ethics and was acknowledged even prior to the time that the Tarasoff case established a … There shall be no monetary liability on the part of, and no cause of action shall arise against, a psychotherapist, who, under the limited circumstances specified above, discharges his or her duty to warn and protect by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency.xv. Whatever standardized assessment tool you utilize, the goal is to arrive at a reasoned and informed judgment about your patient’s capacity for committing violence. West Publishing. Tarasoff cases can be complex, but fortunately they are statistically rare events. vi Based on the Tarasoff case, the failure of a psychotherapist to properly discharge the duty to protect can result in civil liability for such psychotherapist, which means that such therapist would have to pay compensation to victims of any violence wrought by the therapist’s patient. When you combine Poddar’s serious diagnosis with his obsession for Tatiana and with his stated intent to kill her, confirmation bias notwithstanding, does he not sound dangerous to you? If, after assessing, you do not believe your patient is reasonably likely to commit violence, your job is not finished. He then returned to the Tarasoff’s home and called the police. Prosenjit Poddar and Tatiana Tarasoff met at the University of California, Berkeley in 1968. The peril must be foreseeable. TARASOFF the CASE (determined by CA Supreme Court, 1976) 1. Tarasoff at Thirty psychotherapists had an affirmative duty to warn Tarasoff of the threat Poddar posed.' For purposes of this article, I am blending facts from the civil and criminal cases to help the reader better understand the issue. You've reached the end of your free preview. Despite the fact that Poddar had expressly stated he would kill Tatiana when she returned from Brazil, no one communicated such intent to Tatiana or to a member of her family. Under Tarasoff the Case, the duty to protect is triggered when the therapist “determines” that a patient presents a serious danger of violence to another. During the psychotherapy process, psychologists are required, to inform patients of the limitations of confidentiality. The parents of the young woman sued, alleging negligence. However, when members of the campus police interviewed Poddar, they were satisfied that he was not dangerous to Tatiana. 910, 518 P.2d 342]. Was a specific threat of violence made? 2. 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. Tatiana refused to speak with him and she screamed. For Tarasoff obligations to arise, your actual patient must be the one you believe is reasonably likely to commit violence, not a third party. Perhaps the client has threatened to kill his former boss because the client was passed over for a promotion. Mavroudis v. Superior Court of San Mateo. Although you have to take action to fulfill the duty, there is currently some ambiguity in the law with regards to the proper action to take to discharge the duty to protect. In terms of potential violence, it is a factor to be considered. The perpetrator, Prosenjit Poddar, was an Indian graduate student at … 1979;2:1-28. Under Tarasoff the Case, the duty to protect could be discharged in a variety of ways, with hospitalization, whether voluntary or involuntary, seemingly being an acceptable and lawful way of discharging the duty to protect. Buckner F, Firestone M: "Where the public peril begins": 25 years after Tarasoff. Tarasoff: Exploring: Understanding, and Implications The mental health professional’s responsibility to uphold confidentiality within the therapeutic relationship is key in the counseling practice, yet there are limits to confidentiality. PROCEDURE 1 Section 81059(c) California Welfare and Intuitions Code as amended by SB 127 and effective January 1, 2014. Univ Cincinnati Law Rev Univ Cincinnati Coll Law 1987; 56(1):269–293 Google Scholar. of Cal. The law does not expect you to predict future violence with one-hundred percent accuracy. ixSimon, M.D., Robert I. Psychiatry and Law for Clinicians. Poddar grew feelings for Tarasoff, but shortly found out that she had no intentions of a, Poddar became depressed and developed a sense of resentment. Perhaps a real life example will illustrate the process. Two years later, the California Supreme Court vacated his conviction entirely and ordered a new trial. What if your patient said that “Tonight, people are going to die!”? in 1976. The assessment should help you clarify what you believe about the patient’s capacity for committing violence. Thus, it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.”v, This duty to protect can be compartmentalized into two steps: the first is an “assessment” step. xvThere is current CAMFT legislation pending, SB 1134 (Yee), which would clarify the duty discharged under Section 43.92 (b) of the Civil Code to a “duty to protect” rather than a “duty to warn and protect.”, Contact Us | Legal Disclosure | Privacy Policy, About CAMFT | CEPA | Educational Opportunities | Membership | Resources Since some reading this article may be encountering the “dangerous patient” issue for the first time, it seems prudent to review the factual background to the Tarasoff casesii for context. Consequently, although Moore sought to have Poddar involuntarily committed, the campus police disregarded Moore’s recommendation and Poddar remained free. Discharging the duty to … It recognizes that Tarasoff situations can be very different factually and that thought is supposed to be given as to what is reasonable under the circumstances of the particular case. Under Tarasoff the Case, to discharge the duty to protect, one could warn the intended victim or others likely to apprise the victim of the danger, one could notify the police, or one could take whatever other steps are reasonably necessary under the circumstances. The Tarasoffs essentially sued on two theories: someone should have warned Tatiana, or notified her, that Poddar intended to kill her once she returned from Brazil, and the parties involved negligently failed to have Poddar involuntarily committed. About two months later, in October of 1969, Tatiana returned to California from Brazil, and Poddar began following her again. (2005). As you work with a client, you may become privy to information that makes you concerned, or should make you concerned, that your client may kill or physically injure another human being. The lawsuit filed by the Tarasoffs was ultimately heard by the California Supreme Court twice, which is remarkable in itself, and on July 1, 1976, the court announced the following ground-breaking dutyiv for psychotherapists: “When a therapist determines, or pursuant to the standards of his profession 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 against such danger. The threat to commit violence can be relayed to the therapist by a family member of the patient, and then the therapist must assess the patient’s capacity for violence in light of that relayed information. His psychological profile indicated that his violence was likely to be directed against women very close to him.”, Consequently, Mr. Jablonski is an example of an individual who was extremely dangerous to his current girlfriend although he never uttered a specific threat to harm her. The murder of Tatiana Tarasoff by Prosenjit Poddar resulted in five published legal opinions by various California courts: Regarding the wrongful death action filed in civil court, see Tarasoff v. Regents of the University of California (1973) 33 Cal.App.3d 275; Tarasoff v. Last updated December 1, 2020 Peer-Reviewed Journal Articles Tarasoff, L.A., Murtaza, F., Carty, A., Salaeva, D., Hamilton, A., & Brown, H.K. Tarasoff 1, 529 P.2d 553 (Cal. duty to protect under Tarasoff case law. Course Hero is not sponsored or endorsed by any college or university. It is likely more important to preserve the patient’s confidentiality and trust, not destroy it by unnecessarily calling the authorities. If a patient threatens to commit violence against another person, the psychotherapist does not need to hear that threat directly from the patient himself or herself to have to assess the threat.x. You should continue assessing for violence during subsequent interactions with this patient, and work with the patient to reduce any “friction” in the patient’s life. Moore, Poddar’s psychologist, believed (determined) that Poddar needed to be hospitalized to keep him from harming Tatiana, and possibly himself. 2. One never really knows when the discordant music of a dangerous patient situation may begin to play, and the time to “dance” has arrived. A case to be familiar with is the well-known Tarasoff v. Regents of the University of California case that helped ensure helping professions become obligated to act and protect the lives of third parties. My professor never mentioned hospitalization as an option.”. Rather, it expects you to assess for the likelihood of violence by utilizing your education, training, and experience. Reviewed October, 2017 by David G. Jensen, JD (CAMFT Staff Attorney) i Some theorists believe there are actually three steps in the Tarasoff process, gathering information, evaluating information, and then acting on the evaluated information, but I have chosen to combine the activities of gathering and evaluating information into one process. 1 Plaintiffs, Tatiana's parents, allege that two months earlier Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley. These concepts are protected by law in almost all jurisdictions1,2. 1-2, pp. Certainly a therapist should not be routinely encouraged to reveal such threats; such disclosures could seriously disrupt the patient’s relationship with his therapist and with the persons threatened. As we have seen, however, depending on the facts of the case, the duty to protect can be discharged in different ways. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. The reason your professor did not mention hospitalization as an option is likely because the professor focused only on Tarasoff the Statute, but ignored Tarasoff the Case. In Tarasoff v. In that case, Mr. Jablonski was considered to be very dangerous to Ms. Kimball, although he never actually threatened her. It is a myth to believe that every threat uttered by a patient must result in Tarasoff warnings; it is a truism to believe that every threat must be assessed. (2020). After he confided to her about his feelings, Tatiana told him she was not interested in being his girlfriend, which devastated Poddar. Do you want immunity from liability? A second difference between Tarasoff the Case and Tarasoff the Statute is the categories of people who could be victims of the patient’s violence. He sought treatment from Lawrence Moore, a psychologist at Berkeley’s Cowell Memorial Hospital.In his seventh and final therapy session, Poddar t… Step two involves doing something affirmatively to help protect intended victims from threatened violence committed by patients. The inception of DTW laws came at the ruling of Tarasoff v. Regents of Univ. After meeting Indian graduate student, Prosenjit Poddar, at a folk dancing class, Tatiana agreed to go on several dates with him but soon called it off after getting into a disagreement over the seriousness of their relationship. You would, of course, try and get some additional details from your patient about this event by asking “Who is going to die?” “Where is this going to happen?” “Why do you feel the need to do this?” But, suppose the patient says “I’m not going to tell you because I know you will just call the cops; I just want you to know that people will die tonight and tomorrow I will be famous.”. Chapter Information | Advocacy | CAMFT Community | Advertising | CounselingCalifornia.com, California Association of Marriage and Family Therapists | 7901 Raytheon Road, San Diego, CA 92111-1606 However, under Tarasoff the Statute, to discharge the duty to protect, one must make reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency. Before delving into the depths of this article, it is important to realize that the facts underlying a dangerous patient situation may give rise to two separate duties: the duty to protect under the Tarasoff case and a duty to report under California Welfare and Institutions Code § 8105. In enacting the duty to protect in Tarasoff the Case, the California Supreme Court explained that the duty to protect “may require the therapist to take one or more various steps, depending upon the nature of the case. Psychology Definition of TARASOFF DECISION: This relates to a court decision and has meant that if a person is in danger from a person with mental health issues they must be told as well as the Ultimately, those reasons and judgments will come from your understanding of your patient, from your understanding of human behavior, and from your understanding of the factors that can lead to violence. Phone: (858) 292-2638 | Fax: (858) 292-2666 The two briefly dated, but after Tarasoff rejected him in favor of other men, Poddar became extremely depressed and began stalking Tarasoff. Roth MD, Levin LJ: Dilemma of Tarasoff: must physicians protect the public or their patients? Immunity from liability means that even if your patient actually goes out and harms intended victims, if you have accomplished the two parts required by Tarasoff the Statute, you cannot be held financially responsible for the violent acts of your patient. Perhaps the client has suffered a psychotic break and believes God has commanded him to sacrifice his daughter to atone for the sins of Hollywood. Regarding the criminal prosecution of Poddar, see People v. Poddar (1972) 26 Cal.App.3d 438 and People v. Poddar (1974) 10 Cal.3d 750. Imminence is necessary for Tarasoff duty to exist. The third factor, and likely the most compelling, was Poddar’s stated intent to kill Tatiana, especially when you combine such intent, with his serious condition, and his obsession. 1. 145-168. Is immunity from liability available? You demonstrate competence by applying your education, training, and experience to the facts of the patient’s situation. For instance, your client tells you that her brother, whom you never met, threatened to kill his former girlfriend. The third issue is what to do if your patient is the potential victim of someone else’s violence. Having the immunity under § 43.92, on the other hand, would likely make it easier for your attorney to get you out of a lawsuit earlier than it would be if making a defense centering on complying with the standard of care. J Leg Med 2000; 21(2):187–222 Google Scholar. Thus, Tarasoff the Case provides three options and Tarasoff the Statute offers two options. On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. 11.Palsgraf v Long Island Railroad Co, 162 NE 99 (NY 1928). Immunity is a wonderful thing, but calling the police may not always be the best route to quell violence. The Tarasoff case imposed a liability on all mental health professionals to protect a victim from violent acts. 1 The criminal prosecution stemming from this crime is reported in People v. Poddar (1974) 10 Cal.3d 750 [111 Cal.Rptr. xiv Id. Page 1 Page 1 Introduction Privilege and confidentiality are central to the physician-patient relationship. In fact, such activity may actually increase the likelihood of violence occurring. But, as of right now, Tarasoff the Case permits an activity, such as hospitalization, that Tarasoff the Statute does not grant immunity for, which is unfortunate. ii The murder of Tatiana Tarasoff by Prosenjit Poddar resulted in five published legal opinions by various California courts: Regarding the wrongful death action filed in civil court, see Tarasoff v. Regents of the University of California (1973) 33 Cal.App.3d 275; Tarasoff v. Regents of the University of California (1974) 13 Cal.3d 177; and, Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425. 1974). The relevant principles of law run much deeper than those ideas. If your patient communicates to you a serious threat of physical violence against a reasonably identifiable victim or victims, and you reasonably believe your patient is likely to commit such violence after assessing for it, you can discharge the duty to protect by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency, which will get you immunity from liability under Tarasoff the Statute, if your patient actually harms such victims. So, are you ready to do The Tarasoff Two-Step? Volume 11, Issue 1-2 Tarasoff and the Duty to Protect Search in: Advanced search. To discharge the duty to protect, you must understand the differences between these two laws. Let’s take a closer look at Tarasoff the Statute, California Civil Code § 43.92. The key is using an assessment tool that has been generally recognized by the psychotherapy community, which certainly includes assessment devices published in textbooks, practice handbooks, peer-reviewed articles, and information acquired from continuing education course instructors. Merton records that after returning to India, he fell in love with a lawyer, and was happily married for many years. Obviously, we do not require the therapist, in making that determination, to render a perfect performance; the therapist need only exercise reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of that specialty under similar circumstances. 2 conditions under which Tarasoff applys: 1. Int J Law Psychiatry. September/October 2012 Walcott, Cerundolo, and Beck (2001) cite the second Tarasoff case, establishing a duty to protect. xii Id. Tarasoff v. Regents of the University of California, 17 Cal. Step Two of The Tarasoff Two-Step: Discharging the Duty to Protect. Tarasoff’s family sued the campus police and the university health service for negligence. On August 18, 1969, he was a voluntary outpatient at Cowell Memorial Hospital. Duty to warn means that the social worker must verbally tell the intended victim that there is a foreseeable danger of violence. Prosenjit Poddar, a University of California graduate student, developed an infatuation with Tatiana Tarasoff, a woman he met at a dance class. They saw each other weekly throughout the fall of 1968, and on New Year’s Eve Tatiana kissed Poddar, which caused him to believe they were involved romantically. He had raped and committed other acts of violence against his previous wife. Weinstock R, Vari G, Leong GB, et al. therapists are faced with an ethical dilemma that imposes on their right to protect the, confidentiality of the client. Has this person killed or injured people before? Remember, the goal is not to predict what Poddar will actually do; the goal is to make a reasoned assessment of his capacity for violence. Journal of Aggression, Maltreatment & Trauma: Vol. In this … Assessing for the likelihood of violence is different from predicting that violence will occur. Obsession can make people unstable, especially when the obsession is coupled with statements like “if I can’t have her, no one else will” or “since she has wronged me, she has to be punished.” In terms of potential violence, evidence of obsession is also a factor to consider. One difference between Tarasoff the Case and Tarasoff the Statute is how the duty to protect is triggered. 9 . 3d 425 He heard her say that while she was in Brazil, she had an affair with another man. The therapist can break confidentiality, only when there is a possibility of imminent danger to the client or others. The intended victim must be reasonably identifiable. This dance is called The Tarasoff Two-Step.i Some therapists resist learning it because they believe they will have only high-functioning, stable clients. Journal Journal of Aggression, Maltreatment & Trauma Volume 11, 2005 - Issue 1-2. The second factor was likely Poddar’s obsession with Tatiana. This is not to say, however, that everyone with this diagnosis will kill someone who does not return their love; rather, it is only to say that this is a serious disorder that can make people unstable. One reason was likely Poddar’s diagnosis of “paranoid schizophrenic reaction, acute and severe,” a severe psychiatric disorder. The State of California agreed to release him on condition that he leave the United States immediately, which he did. The differences in the language used raise a key question: Do you need an actual threat of violence before you can determine whether someone is dangerous to another person? Think back to the Tarasoff case. 1. It was his history of violence, coupled with his instability that made him so dangerous to Ms. Kimball. iii Students and clinicians often ask what happened to Poddar? (See **) Goal # 2: A history of DTW laws. This article should convey that they are not as simple as just calling the police and just warning identifiable victims. 2 The therapist defendants include Dr. Moore, the psychologist who examined Poddar and decided that Poddar should Poddar grew feelings for Tarasoff, but shortly found out that she had no intentions of a further relationship. Such cases, depending on the underlying facts, may also involve suspected child, elder, or dependent adult abuse reports to be made. If your patient is the potential victim of violence, you should be working with your patient to formulate a safety plan for that person. Such situations could, however, result in the reporting of suspected child, elder, or dependent adult abuse, depending on the facts. During the summer of 1969, Tatiana went to Brazil, and a friend suggested that Poddar seek counseling, which he did. Poddar then stopped attending therapy with Moore. They felt he had “changed his attitude altogether.” The campus police encouraged him to stay away from her, which he promised to do. Conversely, if you do not believe your patient is reasonably likely to commit violence, state that and why you believe so! It is far better to be prepared ahead of time to handle these situations as opposed to being overwhelmed by them later.
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