Exceptions arise only in limited situations where (1) a special relationship exists between the defendant and the injured party giving the latter a right to protection, or (2) a special relationship exists between the defendant and the active wrongdoer imposing a duty on the defendant to control the wrongdoer's conduct. 97, 443 P.2d 561, 32 A.L.R.3d 496], Justice Peters recognized that liability should be imposed "for injury occasioned to another by his want of ordinary care or skill" as expressed in section 1714 of the Civil Code. 175, 178;  Guttmacher and Weihofen, Privileged Communications Between Psychiatrist and Patient (1952) 28 Ind.L.J. The purpose of violence risk assessment differs somewhat across applications, but at its core, it is the estimation of the likelihood of future violent behavior posed by an individual. 1025, 1027–1031.) Rptr. 0000001950 00000 n Until a patient can trust his psychiatrist not to violate their confidential relationship, “the unconscious psychological control mechanism of repression will prevent the recall of past experiences.”  (Butler, Psychotherapy and Griswold:  Is Confidentiality a Privilege or a Right? It remains an unfortunate fact in our society that a stigma attaches to people seeking psychiatric guidance (apparently increased by the propensity of people considering treatment to see themselves in the worst possible light) creating a well-recognized reluctance to seek aid. 612;  Skillings v. Allen (1919) 143 Minn. 323, 173 N.W. Thus many states, over the 35 years since Tarasoff, have established their own case law and/or legislation. of California, 17 Cal.3d 425, 131 Cal.Rptr. Clearly, Moore's decision that Poddar be confined was not a proximate cause of Tatiana's death, for indeed if Moore's efforts to bring about Poddar's confinement had been successful, Tatiana might still be alive today. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device ․ was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.”   The Legislature thus concluded at least in another context that the failure to warn of a latent danger is not an immunized discretionary omission. Consent may only be given by individuals who have reached legal age of consent (in the U.S., typically 18) . 348–350. At this stage we are unaware, of course, precisely how Moore responded to Powelson's actions;  he may have debated the confinement issue with Powelson, for example, or taken no initiative whatsoever, perhaps because he respected Powelson's judgment, feared for his future at the hospital, or simply recognized that the proverbial handwriting was on the wall. 599, 604.) 0000010346 00000 n 332–333. Given the majority's recognition that under existing psychiatric procedures only a relatively few receiving treatment will ever present a serious risk of violence (ante, p. 136 of 118 Cal.Rptr., p. 560 of 529 P.2d. at p. 251, 447 P.2d at p. 363;  cf. By now, the case name Tarasoff v.Regents of the University of California 1 has become a household word in American mental health law circles. Assurance of confidentiality is important in three ways. Morally questionable, the rule owes its survival to “the difficulties of setting any standards of unselfish service to fellow men, and of making any workable rule to cover possible situations where fifty people might fail to rescue․”  (Prosser, Torts (4th ed. Second, the guarantee of confidentiality is important in eliciting the full disclosure necessary for effective treatment. Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 942–943, 41 Cal.Rptr. ), 7. that case a special relationship was held to exist between the psychotherapists and their client Poddar, seemingly based on the psychotherapists’ duty to control Poddar, and the These resistances seek support from every possible source and the possibility of disclosure would easily be employed in the service of resistance.”  (Goldstein and Katz, supra, 36 Conn.Bar J. 610, 637–638, 640, 642, 651.). From those facts one could reasonably infer that defendants' actions led Poddar to halt treatment which, if carried through, might have led him to abandon his plan to kill Tatiana, and thus that defendants, having contributed to the danger, bear a duty to give warning. The judgment of the therapist, however, is no more delicate or demanding than the judgment which doctors and professionals must regularly render under accepted rules of responsibility. By imposing such duty on psychiatrists, the majority contributes to society's danger. Incorporating the crucial allegations of the first cause of action, plaintiffs charge that Powelson “did the things herein alleged with intent to abandon a dangerous patient, and said acts were done maliciously and oppressively.”. 240, 447 P.2d 352, between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not. ), 17. (1971), 5 Cal.3d 864, 876, 97 Cal.Rptr. James, Tort Liability of Governmental Units and their Officers (1955) 22 U.Chi.L.Rev. WASHINGTON, July 2—Following are excerpts from the Supreme Court's decisions today in the death penalty cases: We address initially the basic contentention that the punishment of … Diversion, any of a variety of programs that implement strategies seeking to avoid the formal processing of an offender by the criminal justice system. In Evidence Code section 1014, it established a broad rule of privilege to protect confidential communications between patient and psychotherapist. Summarily stated, “The process involves a prying into the most hidden aspects of personality, a prying which discloses matters theretofore unknown even to the conscious mind of the patient.”  (Slovenko, supra, 6 Wayne L.Rev. (See Prosser, supra, § 56, at pp. They allege that on Moore's request, the campus police briefly detained Poddar, but released him when he appeared rational. 0000012564 00000 n It is disturbing that the majority should take, by ambiguous statement and without discussion, the very broad step of imposing on a peace officer the near impossible duty to notify potential victims of threatened violence. Consent may only be given by individuals who have reached legal age of consent (in the U.S., typically 18) . See Merrill v. Buck (1962) 58 Cal.2d 552, 562, 25 Cal.Rptr. Copyright © 2020, Thomson Reuters. (Id. (1964) 230 Cal.App.2d 272, 277, 40 Cal.Rptr. He then sent a letter to Police Chief William Beall requesting the assistance of the police department in securing Poddar's confinement. Out of what event did this ruling come?a. 577, 580, 397 P.2d 161, 164.) 240, 447 P.2d 352, upheld a suit against the state for failure to warn foster parents of the dangerous tendencies of their ward;  Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 0000008145 00000 n (3 Witkin, Cal.Procedure, Pleading, § 844, p. 2449;  accord La Sala v. American Sav. 703.) In some settings (i.e., treatment discharge planning), risk assessment also includes a specification of the risk factors present in a case and the risk management or intervention strategies that would be necessary to mitigate risk. Section 5201 of the Welfare and Institutions Code provides:  “Any individual may apply to the person or agency designated by the county for a petition alleging that there is in the county a person who is, as a result of mental disorder a danger to others, or to himself, or is gravely disabled, and requesting that an evaluation of the person's condition be made.”   We believe that defendant therapists' power to recommend confinement as provided by section 5201 suffices to place them within the class of persons protected by section 856 of the Government Code. Tarasoff parents filed a law suit against regents of University of California, accusing them on not detaining a dangerous patient, no warning about a dangerous patient, and abandonment of a dangerous patient. Plaintiffs' complaints state no cause of action for exemplary damages. The cases thus exemplify an evolution from a rule of “no duty” to a rule in which imposition of a duty of care depends upon the foreseeability of serious injury and the burden of precautions. Moore, with the concurrence of Dr. Gold, who had initially examined Poddar, and Dr. Yandell, assistant to the director of the department of psychiatry, decided that Poddar should be committed for observation in a mental hospital. 1 Nesbitt: Tarasoff v. Regents of the University of California: Psychotherap … 829, 832, 467 P.2d 557, 560. The criminal prosecution stemming from this crime is reported in People v. Poddar (1974) 10 Cal.3d 750, 111 Cal.Rptr. The imposition of a duty depends on policy considerations. 175, 185. ), the newly imposed duty will likely result in a net increase in violence—inconsistent with the policies of preventing future violence and of weighing the consequence to the community. Conversely, all authorities appear to agree treatment will be frustrated if the trust relationship cannot be developed because of collusive communication between the psychiatrist and others. 790–793, 72 Cal.Rptr. Defendants, however, contend that in the circumstances of the present case they owed no duty of care to Tatiana or her parents and that, in the absence of such duty, they were free to act in careless disregard of Tatiana's life and safety. President John Adams named William Marbury as one of forty-two justices of the peace on March 2, 1801. They are persons who can “determin[e] in accordance with [section 5201] whether to confine a person for mental illness.”. The source of their immunity is section 5154 of the Welfare and Institutions Code, which declares that “[t]he professional person in charge of the facility providing 72–hour treatment and evaluation, his designee, and the peace officer responsible for the detainment of the person shall not be held civilly or criminally liable for any action by a person released at or before the end of 72 hours․”  (Emphasis added. She complains of weakness, weight loss, nausea, and fever of several months’ duration. How The Tarasoff Case Has Affected Ethical Decision Making For Human Service Professionals. Internet Explorer 11 is no longer supported. 6  Both exceptions apply to the facts of this case. Notably, Justice Tobriner, the author of Johnson and Tarasoff, dissented from the majority’s formulation, finding that the failure to warn the mother did state a cause of action. CASE. Vitaly TARASOFF et al., Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents. And, as the majority concedes, they often express such thoughts. One of the most significant rights for crime victims is the right to be heard during critical criminal justice proceedings that affect their interests. Since we have concluded that Powelson is protected by governmental immunity from liability for his decision not to commit Poddar, plaintiffs' complaints state no basis for recovery of exemplary damages against Powelson. Defendant therapists are immune from liability for failing to confine Poddar. And, given the decision not to warn must always be made at the psychiatrist's civil peril, one can expect all doubts will be resolved in favor of warning. 401), requiring intensive examination of “innate and constitutional factors, the history of the individual's emotional, educational, cultural, vocational and medical backgrounds, the influence of sexual and aggressive instincts, so-called ego or personality strength, judgment and reality-testing.”  (Id. A mental hospital may be liable if it negligently permits the escape or release of a dangerous patient (Underwood v. United States (5th Cir.1966) 356 F.2d 92;  Fair v. United States (5th Cir.1956) 234 F.2d 288). Greenberg v. Barbour (E.D.Pa.1971) 322 F.Supp. The holding is so broad it may be understood, in light of the facts of this case, as meaning that the mere release of Poddar gave rise to the duty to warn. Regents of Univ. Now, operating under the majority's duty, the psychiatrist—with each patient and each visit—must instantaneously calculate potential violence. First, without a substantial guarantee of confidentiality, people requiring treatment will be deterred from seeking assistance. 508.) 14. 240, 447 P.2d 352, and cases there cited;  Rest.2d Torts, supra, § 321 and illus. As one might expect from a state in the Deep South in the mid-twentieth century, Georgia's arbitrary enforcement tended to correlate along racial lines. The imposition of liability in those rare cases in which a public employee falls short of this standard does not contravene the language or purpose of Government Code section 820.2. The Landmark Case of Tarasoff and Beyond This action revolves around the murder of a girl by an individual who had previously informed his therapist of his intention to kill her. The pleadings establish the requisite relationship between Poddar and both Dr. Moore, the psychotherapist who treated Poddar, and Dr. Powelson, who supervised that treatment. 97, 443 P.2d 561.). 129 (1974). The courts hold that a doctor is liable to persons infected by his patient if he negligently fails to diagnose a contagious disease (Hofmann v. Blackmon (Fla.App.1970) 241 So.2d 752), or, having diagnosed the illness, fails to warn members of the patient's family (Wojcik v. Aluminum Co. of America (1959) 18 Misc.2d 740, 183 N.Y.S.2d 351, 357–358;  Davis v. Rodman (1921) 147 Ark. This purpose is made simplistically clear in the Law Revision Commission's comment accompanying section 1024:  “Although this exception might inhibit the relationship between the patient and his psychotherapist to a limited extent, it is essential that appropriate action be taken if the psychotherapist becomes convinced during the course of treatment that the patient is a menace to himself or others and the patient refuses to permit the psychotherapist to make the disclosure necessary to prevent the threatened danger.”  (Italics added.). Poddar informed Moore, his therapist, that he was going to kill an unnamed girl, readily identifiable as Tatiana, when she returned hom from spending the summer in Brazil. We dismissed, in Johnson, the view that immunity continues to be necessary in order to insure that public employees will be sufficiently zealous in the performance of their official duties. We explain why, in our view, such considerations do not preclude imposition of the duty in question. 34;  Burnham, Separation Anxiety (1965) 13 Arch.Gen.Psychiatry 346, 356;  Heller, supra, 30 Temp.L.Q. (Ante, p. 135 of 118 Cal.Rptr., p. 135 of 529 P.2d.). (July 1973) Bull. The majority states that duty is dependent on considerations of policy—but the policy goes unexplained. Generally, one person owes no duty to control the conduct of another. The first Tarasoff case imposed a duty to warn the victim, whereas the second Tarasoff case implies a duty to protect (Kopels & Kagle, 1993). If in the exercise of reasonable care the therapist can warn the endangered party or those who can reasonably be expected to notify him, we see no sufficient societal interest that would protect and justify concealment. Although defendants in Johnson argued that the decision whether to inform the foster parents of the child's background required the exercise of considerable judgmental skills, we concluded that the state was not immune from liability for the parole officer's failure to warn because such a decision did not rise to the level of a “basic policy decision.”. 1. (See, e.g., Ralph Slovenko (1973) Psychiatry and Law, p. 61;  Cross, Privileged Communications Between Participants in Group Psychotherapy (1970) Law and the Social Order, 191, 199;  Hollender, The Psychiatrist and the Release of Patient Information (1960) 116 Am.J.Psychiatry 828, 829.). 對Id. Absent such conduct, I would disallow a cause of action for failure to warn based solely on the existence of the prior psychiatrist-patient relationship. The landmark case, Tarasoff v. Regents of University of California, 551 P.2d 334 \⠀䌀愀氀⸀ ㄀㤀㜀㘀尩, held that when a psychiatrist d\൥termines, or should have determined, that the patient presents a danger to another, he has a duty to warn the intended victim. Rptr. The Supreme Court recently concluded 90 minutes of oral arguments in the consolidated cases of Doe v. Case Brief 5 Case: Tarasoff v. Regents of University of California Facts: A student Tarasoff was stepped to death by a released mental patient. Defendants, in turn, assert that they owed no duty of reasonable care to Tatiana and that they are immune from suit under the California Tort Claims Act of 1963 (Gov.Code, § 810ff.). All rights reserved. WRIGHT, C.J., and MOSK, SULLIVAN and BURKE,* JJ., concur.McCOMB, J., concurs. 1971) § 56, p. 51. The Legislature has undertaken the difficult task of balancing the countervailing concerns. 14, 551 P.2d 334 (1976), held that when a psychiatrist determines, or should have determined, that the patient presents a danger to another, he has a duty to warn the intended victim. 175, 187–188;  Goldstein and Katz, Psychiatrist–Patient Privilege:  The GAP Proposal and the Connecticut Statute (1962) 36 Conn.Bar J. and the Law 186;  Kozol, Boucher, and Garofalo, The Diagnosis and Treatment of Dangerousness (1972) 18 Crime and Delinquency 371;  Justice and Birkman, An Effort to Distinguish the Violent From the Nonviolent (1972) 65 So.Med.J. 2. Defendant therapists advance two policy considerations which, they suggest, justify a refusal to impose a duty upon a psychotherapist to warn third parties of danger arising from the violent intentions of his patient. We conclude that a doctor or a psychotherapist treating a mentally ill patient, just as a doctor treating physical illness, bears a duty to use reasonable care to give threatened persons such warnings as are essential to avert foreseeable danger arising from his patient's condition or treatment. Relying on Johnson, we conclude that defendants in the present case are not immune from liability for their failure to warn of Tatiana's peril. 1971) § 56, p. 341), the courts have noted exceptions to this rule. They further claim that Dr. Harvey Powelson, Moore's superior, then directed that no further action be taken to detain Poddar. H�b```f``g`3��(�����q�O����D�-����~w��Q~��P�h�T�:��M�ME$��������4�>���}O>��{�������� �*:�|j^~N�k�Q����B�Z>^n����f�����M�� Section 856 also insulates Dr. Moore for his conduct respecting confinement, although the analysis in his case is a bit more subtle. As a specialist, the psychotherapist, whether doctor or psychologist, would also be “held to that standard of learning and skill normally possessed by such specialist in the same or similar locality under the same or similar circumstances.”  (Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159–160, 41 Cal.Rptr. 3d 177, 529 P.2d 553, 118 Cal. Such a claim, based as it necessarily would be upon a subordinate's failure to prevail over his superior, obviously would derive from a rather onerous duty. 275. Plaintiffs' complaints allege that defendants failed to warn Tatiana's parents of the danger to Tatiana from Poddar. Turning, first, to the special relationships present in this case, we note that a relationship of defendant therapists to either Tatiana or to Poddar will suffice to establish a duty of care;  as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either “(a) a special relation ․ between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation ․ between the actor and the other which gives to the other a right to protection.”, Although plaintiffs' pleadings assert no special relation between Tatiana and defendant therapists, they establish as between Poddar and defendant therapists the special relation that arises between a patient and his doctor or psychotherapist.7  Such a relationship may support affirmative duties for the benefit of third persons. United Air Lines, Inc. v. United States, 379 U.S. 951, 85 S.Ct. The Veterans Administration arranged for the patient to work on a local farm, but did not warn the farmer of the man's background. 0000031071 00000 n 11. However, unlike this court, the psychiatrist does not enjoy the benefit of hindsight in seeing which few, if any, of his patients will ultimately become violent. 0000020257 00000 n We also noted in Johnson that federal courts have consistently categorized failures to warn of latent dangers as falling outside the scope of discretionary omissions immunized by the Federal Tort Claims Act.16  (See United Air Lines, Inc. v. Weiner (9th Cir.1964) 335 F.2d 379, 397–398, cert. The California Supreme Court, in its controversial Tarasoff decision, ruled that a psychotherapist may be found negligent when he fails to prevent his patient from harming someone. The therapist defendants include Dr. Moore, the psychologist who examined Poddar and decided that Poddar should be committed;  Dr. Gold and Dr. Yandell, psychiatrists at Cowell Memorial Hospital who concurred in Moore's decision;  and Dr. Powelson, chief of the department of psychiatry, who countermanded Moore's decision and directed that the staff take no action to confine Poddar. In each case we also consider the characteristics that affect awareness and knowledge of the Court. 8. The prognosis was good and a nearby hospital was available to perform the ordinary medical treatment. 760, 764, 478 P.2d 480, 484.) 409. Moore argues that after Powelson countermanded the decision to seek commitment for Poddar, Moore was obliged to obey the decision of his superior and that he therefore should not be held liable for any dereliction arising from his obedience to superior orders. 478 P.2d 480, 484. ) 829, 467 P.2d 557 ), 5 Cal.3d,! 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