Tarasoff law duty to warn of impending danger

                            Tarasoff Law Duty to Warn of Impending Danger

                                                     Introduction

            An interesting case of Tarasoff v Regents of the University of California was handled by the Supreme Court of California. In this case the court held that the psychotherapists of the university could as well be liable because of failure to sound a warning to an individual who was threatened and eventually murdered by a patient. (Rothenberg, 1980, p. 715). In the case of common law, a person is under no obligation to control the behavior of another unless the people are related in a special way. (Rothenberg, 1980, p. 715).

          In this case the courts were justified to classify the relationship that existed between the psychotherapists and the patients in such category of affirmative responsibility. (Gostin, 2002).This was in an attempt to create a balance between the interests of the patients in diagnosis with the interest of the society to prevent violence. The result of this attempt was a declaration that psychotherapists had the duty of acting in a reasonable manner so as to prevent any incidences of harm to the public especially when they had enough evidence that a patient was dangerous. (Gostin, 2002).                               Tarasoff Law Duty to Warn of Impending Danger

            Many controversies surrounded the ruling and people got concerned about what impacts the ruling would have on psychotherapy as a profession concerning the relationship between doctors and patients more so in the treatment of mental diseases. The dilemma here is whether a court of law that applies the case of Tarasoff will by implication place the duty of examining clients for sanity on the forensic psychiatrist as the law courts require or upon request by the lawyer.

(Supreme court of California, 1976)  In this case Poddar mentioned his intention of wanting to kill Tatiana Tarasoff to one Dr. Moore, a clinical psychologist. Upon diagnosis, Poddar was found to be paranoid and consequently found dangerous (Rothenberg, 1980, p. 716). Poddar was also put in police custody upon the recommendation of the doctor. However, after some time the police released Poddar on the grounds that he did not appear dangerous as previously claimed adding that he was a rational person. The issue here is that neither Tarasoff nor her parents was warned of the danger that Poddar posed against their lives. Eventually Poddar killed Tarasoff in 1969 October the 27. (Supreme court of California, 1976)

            A case was therefore brought against the University of California, the police as well as the psychotherapists by the parents of the victim. The parents of the victim claimed liabilities arguing that the defendants had failed to warn them of the danger that Poddar posed against their lives. At the same time, the parents of the victim accused the police of failing to contain Poddar in custody despite of the danger that he posed against their lives. According to Rothenberg (1980, p. 716), the defendants maintained that they did not have any responsibility of care to Tarasoff and that they were protected from suit according to the commitment statute. (Rothenberg, 1980, p. 716).

            Following the case, the Supreme Court of California stated that a psychotherapist who had the knowledge that a patient could harm a third party had the responsibility of protecting that particular individual against danger. (Rothenberg, 1980, p. 717). At the same time the courts held that a psychotherapist in charge of diagnosing mental related cases should be aware of potentially dangerous patients. In carrying out this duty, there was need for the psychotherapist to give a notice to the police, confine the patient and then give a warning to the potential victims (Rothenberg, 1980, p. 717).

            In coming up with this decision the court first determined the special nature of the relationship that existed between the psychotherapist and the patient as well as the therapist and the third party. Generally the court maintained that an individual does not have a responsibility of taking charge of the conduct of another person or even of sounding a warning to the people who might be endangered by the conduct of the person (Rothenberg, 1980, p. 717). Granted, as long as a person does not interfere with the interest of another, the law cannot hold a person liable for failing to take responsibility for the benefit of another person. (Rothenberg, 1980, p. 717).

            The rule however had an exception. This was in the scenario where there was a special relationship between a person and the person whose conduct there is need to control or to the potential victim of the dangerous behavior. Such special relationships were found to exist for instance between a child and a parent, a master and a servant as well as a psychiatrist and a potentially dangerous patient among others. The implication here is that in a special relationship, the person in charge possesses some unique benefits from the arrangement and has the power to control the situation in addition to being capable of foreseeing a dangerous conduct. (Rothenberg, 1980, p. 717).

                     Due to the presence of potential dangers that can harm the victims, Tarasoff court saw the need to establish a special relationship between the therapists and patients. The relationship was developed to create an affirmative action/ duty that will help protect the victims. This resolution was reached after realization that the discharge of the duty required the therapist play the vital role in the protection of the victim. In the argument, it was found out that therapist had the role of informing the police and committing the patients (Rothenberg, 1980 p.717). They should warn the victims and their family of the dangers. Therapists were also required to take any other necessary action that they found necessary for the circumstance. (Rothenberg, 1980 p.717).

            For these roles to be effected properly, the therapist-patient relationship needed to be strengthened. The relationship was necessary because as therapists interact with the patient they are interacting directly with the victims (Rothenberg, 1980 p.717). This would enable them get first hand information from the victims and forward it to the police for necessary action to be taken. In the affirmation the court provided a rule that a person does not have a role or a duty to control the conduct of another person and neither is he/she supposed to warn the endangered by such conduct. The court set free a person who does not interfere with another person’s interest (Rothenberg, 1980 p.717).

            The court in it judgment exempted a general rule. They did not put into consideration the special relationship that is created when there is a person whose conducts need to be controlled (Regency  and Jolla, 2005). There are special relationships that exist between the parent and child or the master and slave. This extends to relationships between the mental health providers and the patients who have great potential of danger. In this kind of relationship, one person always benefits from the arrangements (Regency and Jolla, 2005). There is one person who benefits in some way by having the right of control the other person. From this benefit they are able to foresee dangerous misconduct from these people. Therefore in these relationships it is in argument that they can be held responsible for misconduct of their children, slaves and mentally disabled (Regency and Jolla, 2005).

            Some of the actions that the psychiatrist should take incase they sense danger would be to investigate the minds of the patient as some of the dangers like assassination can be detected psychologically by patients. Even as therapists/psychiatrist tries to inform the police of the danger of the patients, enough evidence is not acquired before the incidence by the police. Further to this the efforts of therapists are undermined by the police by giving directive that does not concede with the affirmation of Tarasoff law (Richards, 1998).

            Psychiatrist should take the above affirmative duties because in their relationships they are able to advice the patient on the potential dangers that may occur to a third party. An example is that therapists can advice a parent against careless driving to the benefit of the children or other road users (Richards, 1998). If the doctors don’t advice accordingly this danger can be exposed to the users. To support the affirmation duty to the therapist/psychiatrist, it is their failure if they fail to inform the family members of the illness diagnosed in a patient from the family and they know that the disease can be passed on to others (Richards, 1998).

            Though therapist seem to hold a responsibility of taking care of the third party, it is important to note that some of the warning they give are predictions and they should not always be right. Trust in the above relationships is significant factor because if the patient does not give the correct information to therapist, wrong prediction or actions are taken and therapist becomes mistaken. With all these inconveniences to therapists, it is not good to encourage the doctors to reveal everything to police (Richards, 1998). What therapist should do is to use professional ethics to encourage the patient to reveal their dangers. Professional ethics should be applied when affirming this duty. In conclusion that Tarasoff law duty warns of dangers, the therapist-patient relationship should yield correct information about the dangers to a third victim. With these many dangers can be foreseen and protection of persons can be effective according to Tarasoff duty (Richards, 1998).

            The psychiatrist and the patient are both dedicated towards treating the psychiatric problems of the patients. When the psychiatric meets the patients he tries to make informed diagnosis on the problem of the patient. The psychiatric gets information from personal discussion he has had with the patient and from his professional experience.(Rothenberg, 1980, p.720)  If the patient is motivated enough to attend all the psychological sessions the relationship between the psychiatrist and the patient deepens and the psychiatric is in a better position to help the patient because he knows the patient well. This makes the doctor work closely with the patient hence understand the problem of the patient well. (Rothenberg, 1980, p.720)

             The close relationship between the doctor and the patient allows the doctor to make a judgment on the mental condition of the patient and thus make recommendations for the patients that are well informed. The doctor will have a chance to predict the recovery period of the patient and monitor whether the patient is improving since the first session he attended. (Rothenberg, 1980, p.720) In the forensic model the psychiatric examine the patient because of various reasons such as legal proceedings that require the mental state of the client established and that is why forensic model is different from the normal psychiatric session. (Rothenberg, 1980, p.720)

             Forensic model aims at assisting the courts or the counsels to obtain evidence on a client whose sanity is in question and determine whether the client is competent or sane enough to stand for trial. A forensic model helps the courts in making decisions and judgment on clients. (Rothenberg, 1980, p.720) It helps the prosecution structure criminal defense during the conviction and in post conviction process. The doctor attending the patient is required to provide the attorney and the court with findings of his examination for the patient. Since the treatment is different from that of a therapist and the client, the doctor has no control over the patient and the court only uses his examination to help in the judgment of the case. (Rothenberg, 1980, p.720)

         There has been an argument on whether the forensic psychiatrist is obligated to protect people from being harmed by the patients he examines. This however as found in Tarasoff depends on whether the difference between the forensic model and the therapeutic model have any effect to the policy consideration in the underlying concept of special relationship. (Rothenberg, 1980, p.720) A special relationship is found by the common law when the person is in a position to control a person who is dangerous.

          In forensic psychiatry, the doctor evaluates the patient from an arrangement made by the court or the attorney and not with the authority of the patient. The doctor does not follow the patient for treatment and does nit make any recommendation on the patient’s condition. The patient is left on the hand of the court and the doctor has no more control over him. (Rothenberg, 1980, p.721)In therapeutic psychiatry, the psychiatric have control over the patient because he administers treatment over them. This means that there is a special relationship between the paten and the psychiatric. This is why there should not be an obligation on the doctor to protect people from the patient because he does not spend a lot of time with the patient. (Rothenberg, 1980, p.721)

            The doctor should not be given the responsibility of protecting third parties from his patient because he has no actual control over him. In the Tarasoff court the issue of actual control was not so significant. (Rothenberg, 1980, p.721) According to the Tarasoff court, the special relationship between the patient and the doctor depended on the fact that the two were involved with each other and that the doctor possesses information about the condition of the patient. The psychiatric can therefore be liable for harm done by the patient if he had failed to warn a potential victim on the dangerousness of his patient or failed to warn the family of the patient about the patient. (Rothenberg, 1980, p.721)

           The forensic psychiatrist had to meet the Tarasoff criteria by an extension of the analogy. The psychiatrist was very busy with his clients like a doctor or therapist and patient (Rothenberg, 1980, p.722).Therefore the psychiatrist has some other relationship analogies to other special relationships out of which the law imposes duties to third persons. This implies that this finding would be consistent with the case law and with the policy of creating an affirmative duty in other situations where necessary to protect the public. (Rothenberg, 1980, p.722)

             The court in Tarasoff did not accept the argument made against the therapists because it would infringe on the required confidentiality of communications from patients to therapists (Rothenberg, 1980, p.722). There is a question which came up as to whether the confidentiality is very important to the forensic psychiatrist who was employed to disclose the findings to a court or attorney. If this was the case then a court willing to accept Tarasoff might reject its’ application to the forensic model. (Rothenberg, 1980, p.722)

          The client focus to a forensic investigation may well expect confidentiality because he is dealing with a psychiatrist (Rothenberg, 1980, p.723).  Therefore the more the client has the confidentiality, the more frank and open the investigation is likely to come up with a concrete resolution. The moral needs of confidentiality for psychiatrists and legal statements of evidentiary freedom for the admissibility of psychotherapist patient communication require that confidentiality is not important if the psychiatrist regards patients as dangerous. (Rothenberg, 1980, p.723)

           According to the Tarasoff court, confidentiality should be protected at some point by requiring the disclosure in the lowest intrusive way (Rothenberg, 1980, p.723). This will avoid any inconveniency that might interfere with the court hearing. The court of Tarasoff did not want any problems to occur during the court hearings because this might result into wrong findings that will not provide a concrete resolution. (Rothenberg, 1980, p.723)

           Most of the researches found out that the therapeutic predictions of dangerousness are not reliable and that they not correct. Therefore the researchers came out with evidence that the psychiatrists usually over predict dangerousness (Rothenberg, 1980, p.724).  On the other hand the court of Tarasoff insisted that the psychiatrists had imposed a duty on therapists to act reasonably in order to prevent the public from harm. The natural problems of psychological predictions had influenced the determination of standard of reasonable care. (Fisher, 1964).The dilemmas of the forensic evaluation most likely describe the boundary of reasonable knowledge and its’ evaluation. The evaluation was carried out in order to come up with an ideal resolution during the court hearing before the judge of Tarasoff court (Rothenberg, 1980, p.724). The only problem with the evaluation was that it did not argue against imposing a duty of reasonableness on the evaluator. At some point the evaluation had a conflict that might not provide the best solution for the case in the court of Tarasoff. The court of Tarasoff was not satisfied with the evaluation because it did not provide facts that are concerned with the duty care. (Rothenberg, 1980, p.724)

          There were some problems that concerned the protection of the public where by the evaluators has the knowledge of impending harm that overshadow the problems related to evaluations. Therefore it was the duty of the fact finder to investigate the problems and find out whether the evaluator had done a great work in the field of evaluation. If the evaluation was not well done then it implies that the fact findings were not reliable and might not provide better information to the court of Tarasoff. Therefore the court of Tarasoff concluded that the psychiatrist has the duty to protect the third person who has been threatened by his patient (Hellar, 1957).Tarasoff court added that the psychiatrist must take actions reasonable to protect the third person. The forensic psychiatrist must make a report to the party that requested the evaluation which might be the court or a defense attorney. (Hellar, 1957).

                                                               Conclusion.

           Irrespective of all the questions there have been on the advantages on Tarasoff, courts willing to use it should accommodate the claim on how the forensic law have failed to warn the third parties on the danger posed by their client. (Rothenberg, 1980, p.725)  The Tarasoff duty imposed on the forensic psychiatrist justifies the special relationship that exists between the client and the psychiatrist. There is the problem of breaching the confidentiality of the patient when the doctor predicts the dangerousness of the patient. (Rothenberg, 1980, p.725)

             The doctor has an obligation to protect the confidentiality of his patients which is not changed by the issue of giving out evidence of dangerousness of his patient when he has it or predicting harmful conduct of his patient. (Rothenberg, 1980, p.725) According to Tarasoff, forensic psychiatrist is obligated to make judgment on the mental state of the patient. The psychiatrics judgment is supposed to help in the legal process a well as protect potential victims from the danger of the patient which is hard for forensic psychiatrist who only have a brief interaction with the patient.  (Hernandez, 1970)

                                          Reference:

Fisher (1964). The Psychotherapeutic Professions and the Law of Privileged

            Communications.

Gostin O. (2002).Public health law and ethics. Supreme court of California.

Hellar (1957).Some comments to lawyers on the practice of psychiatry

Hernandez v. (1970) State of California

Regency H and Jolla (2005). America psychology law society. AP-LS News, winter.

Richards, E.P. (1998) California require psychiatrists to warn about dangerous patients.

            VersusLaw Inc.

Rothenberg, H, (1980). The Application of the Tarasoff Duty to Forensic Psychiatry.

            Virginia Law Review, Vol. 66, No. 3, p.715-726

Supreme court of California (1976) Tarasoff v Regents. Supreme courts of California.