Psychotherapists have a duty to protect third parties from violence threatened by their patients
California’s Tarasoff duty, or Duty to Protect, applies when a patient makes a threat to a psychotherapist of serious violence against a reasonably identifiable victim or victims.
If the criteria for a Tarasoff are met, the therapist has a duty to protect the potential victim and can be found negligent if they do not take steps to do so. While the original Tarasoff decision resulted in a specific duty to warn, the current law in California specifies only a duty to protect.1
The Duty to Protect may include notifying law enforcement of the threat, which will trigger a five-year firearm prohibition.
California’s Duty to Protect, or “Tarasoff”, statute is based on a case in which a student at UC Berkeley told his therapist he planned to kill a woman he had been dating, Tatiana Tarasoff, and then did so. Her parents sued the UC Regents and the therapist. In an unusual move, the case was heard twice by the California Supreme Court. The court’s opinions addressed the question of at what point a therapist’s duty to uphold a patient’s privacy is overridden by a duty to protect members of the public from danger.
The first opinion found that the therapist had a duty to warn the potential victim of such a threat.2 The case was heard a second time because of the concern that merely warning a potential victim might not be sufficient to protect them, and in some cases, might even worsen the danger. The ruling of the second case and clarification in Civil Code 43.92 resulted ultimately only in a duty to protect the potential victim.1,3-4
Current California Law
If a therapist fails to take steps to protect the potential victim from a patient who has made a specific threat against them, that therapist can be found negligent. Warning the victim may play a key role in protecting them, but there is no longer a specific duty to warn.5 The duty to protect can also be fulfilled in various other ways according to the clinical situation, including increasing the frequency of therapeutic visits or hospitalizing the patient.4 Importantly, this protective duty overrides concerns about maintaining patient confidentiality.
To complete their protective duty, the therapist is expected to “make reasonable efforts to communicate the threat to the victim or victims and to a law enforcement entity”.1 Patients who become the subject of a “Tarasoff”, or Duty to Protect statute that is reported to law enforcement are prohibited by California law from purchasing or owning firearms for five years.6 While notifying the police may be an important step in protecting the potential victim, it is also the mechanism by which the patient’s name will be communicated to the California Department of Justice for a firearm prohibition.
What You Can Do
The Tarasoff, or Duty to Protect, statute applies only to psychotherapists. Generally, “psychotherapists” refers to licensed mental health clinicians, including psychiatrists, psychologists, marriage and family therapists, social workers, and psychiatric nurses.7 If a qualifying threat is made to this type of clinician, there is a duty to take clinically appropriate steps to protect the potential victim, which may include notifying law enforcement. Such notification supersedes any privilege of patient-therapist privacy.
If a threat of violence is made to a clinician who is not a psychotherapist, they may be permitted, though not required, to breach patient privacy. According to HIPAA, if a patient makes a “serious and imminent threat” of violence, the clinician is allowed to disclose protected health information that (1) is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others and (2) is to a person(s) reasonably able to prevent or lessen the threat.8 According to the US Department of Health and Human Services, “HIPAA expressly defers to the professional judgment of health professionals in making determinations about the nature and severity of the threat to health or safety posed by a patient.”9
However, unlike with Tarasoff, the patient’s right to own a firearm would remain unchanged in this situation unless further action were taken. In such a situation, if there is a serious concern for firearm-related harm, a different type of a civil protective order may be indicated.
Click to view references
- No Duty to Warn in California: Now Unambiguously Solely a Duty to Protect. Journal of the American Academy of Psychiatry and the Law.
- Back to the Past in California: A Temporary Retreat to a Tarasoff Duty to Warn. Journal of the American Academy of Psychiatry and the Law.
- 520-Does HIPAA permit a provider to disclose PHI about a patient if the patient presents a serious danger to self or others.
- 3002-What constitutes a serious and imminent threat that would permit a health care provider to disclose PHI to prevent harm to the patient, another person, or the public without the patient's authorization or permission?
Learn more about potential interventions
Protective orders can remove firearms from dangerous situations.
For more information, see these peer-reviewed articles.
Knoll, J. L., IV. (2019, September 27). Psychiatric Malpractice Grand Rounds: The Tarasoff Dilemma. Psychiatric Times.
Weinstock, R., Bonnici, D., Seroussi, A., et al. (2014). No Duty to Warn in California: Now Unambiguously Solely a Duty to Protect. Journal of the American Academy of Psychiatry and the Law.
Weinstock, R., Vari, G., Leong, G. B., et al. (2006). Back to the Past in California: A Temporary Retreat to a Tarasoff Duty to Warn. Journal of the American Academy of Psychiatry and the Law.
Borum, R., & Reddy, M. (2001). Assessing violence risk in Tarasoff situations: A fact-based model of inquiry. Behavioral Sciences & the Law.
VandeCreek, L., & Knapp, S. (2001). Practitioner’s resource series. Tarasoff and beyond: Legal and clinical considerations in the treatment of life-endangering patients (3rd ed.). Professional Resource Press/Professional Resource Exchange.
Appelbaum, P. S. (1985). Tarasoff and the clinician: Problems in fulfilling the duty to protect. American Journal of Psychiatry.