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CALIFORNIA SUPREME COURT Tarasoff v. Regents of thUniversity of California TOBRINER, Justice causes of action against defendants. We therefore be- gin by setting forth the pertinent allegations of the On October 27, 1969, Prosenjit Poddar killed Tatiana complaints. Tarasoff. Plaintiffs, Tatiana's parents, allege that two Plaintiffs' first cause of action, entitled "Failure to months earlier Poddar confided his intention to kill Detain a Dangerous Patient," alleges that on August Tatiana to Dr. Lawrence Moore, a psychologist em- 20, 1969, Poddar was a voluntary outpatient receiving played by the Cowell Memorial Hospital at the Uni- therapy at Cowell Memorial Hospital. Poddar in- versity of California at Berkeley. They allege that on formed Moore, his therapist, that he was going to kill Moore's request, the campus police briefly detained an unnamed girl, readily identifiable as Tatiana, when Poddar, but released him when he appeared rational. she returned home from spending the summer in They further claim that Dr. Harvey Powelson, Moore's Brazil. Moore, with the concurrence of Dr. Gold, who superior, then directed that no further action be taken had initially examined Poddar, and Dr. Yandell, assis- to detain Poddar. No one warned plaintiffs of Tatiana's tant to the director of the department of psychiatry, peril.... decided that Poddar should be committed for obser- We shall explain that defendant therapists cannot escape liability merely because Tatiana herself was vation in a mental hospital. Moore orally notified Of- ficers Atkinson and Teel of the campus police that he not their patient. When a therapist determines, or pur- would request commitment. He then sent a letter to suant to the standards of his profession should deter- Police Chief William Beall requesting the assistance mine, that his patient presents a serious danger of vi- of the police department in securing Poddar's olence to another, he incurs an obligation to use confinement. reasonable care to protect the intended victim against Officers Atkinson, Brownrigg, and Halleran took such danger. The discharge of this duty may require Poddar into custody, but, satisfied that Poddar was ra- the therapist to take one or more of various steps, de- tional, released him on his promise to stay away from pending upon the nature of the case. Thus it may call Tatiana. Powelson, director of the department of psy- for him to wam the intended victim or others likely to chiatry at Cowell Memorial Hospital, then asked the apprise the victim of the danger, to notify the police, police to return Moore's letter, directed that all copies or to take whatever other steps are reasonably neces- of the letter and notes that Moore had taken as thera- sary under the circumstances.... pist be destroyed, and "ordered no action to place 1. PLAINTIFFS' COMPLAINTS Prosenjit Poddar in 72-hour treatment and evaluation facility." Plaintiffs, Tatiana's mother and father, filed separate Plaintiffs' second cause of action, entitled "Failure but virtually identical second amended complaints. to Warn On a Dangerous Patient incorporates the al- The issue before us on this appeal is whether those legations of the first cause of action, but adds the as- complaints now state, or can be amended to state, sertion that defendants negligeatly permitted Poddar to be released from police custody without notifying From 131 California Reporter 14. Decided July 1, 1976. All footnotes and numerous references in the text of the decision and the parents of Tatiana Tarusoff that their daughter was dissent have been omitted in grave danger from Prosenjit Poddar." Poddar
120 AUTONOMY RIGHTS respect to all risks which make the conduct unreason ably dangerous." persuaded Tatiana's brother to share an apartment As we shall explain, however, when the avoidance with him near Tatiana's residence; shortly after her re- of foresecable harm requires a defendant to control turn from Bw. Poddar went to her residence and the conduct of another person, or to warn of such con- killed her.... duct, the common law has traditionally imposed lia- 2. PLAINTIFFS CAN STATE A CAUSE bility only if the defendant bears some special rela- OF ACTION AGAINST DEFENDANT tionship to the dangerous person or to the potential THERAPISTS FOR NEGLIGENT FAILURE victim. Since the relationship between a therapist and TO PROTECT TATIANA his patient satisfies this requirement, we need not here decide whether foreseeability alone is sufficient to The second cause of action can be amended to allege create a duty to exercise reasonable care to protect a that Tatiana's death proximately resulted from defen- potential victim of another's conduct.... dants' negligent failure to warn Tatiana or others likely A relationship of defendant therapists to either Tu- to apprise her of her danger. Plaintiffs contend that as tiana or Poddar will suffice to establish a duty of care; amended, such allegations of negligence and proxi- as explained in section 315 of the Restatement Sec- mate causation, with resulting damages, establish a ond of Torts, a duty of care may arise from either "(a) cause of action. Defendants, however, contend that in a special relation ... between the actor and the third the circumstances of the present case they owed no person which imposes a duty upon the actor to con duty of care to Tatiana or her parents and that, in the trol the third person's conduct, or (b) a special rela- absence of such duty, they were free to act in careless tion ... between the actor and the other which gives disregard of Tatiana's life and safety.... to the other a right of protection."... In the landmark case of Rowland v. Christian The courts hold that a doctor is liable to persons (1968), Justice Peters recognized that liability should infected by his patient if he negligently fails to diag- be imposed "for an injury occasioned to another by nose a contagious disease, or, having diagnosed the his want of ordinary care or skill" as expressed in sec- illness, fails to warn members of the patient's family. tion 1714 of the Civil Code. Thus, Justice Peters, Since it involved a dangerous mental patient, the quoting from Heaven v. Pender (1883) stated:" 'when- decision in Merchants Nat. Bank & Trust Co. of Fargo ever one person is by circumstances placed in such a * United States (1967) comes closer to the issue. The position with regard to another ... that if he did not Veterans Administration arranged for the patient to use ordinary care and skill in his own conduct ... he work on a local farm, but did not inform the farmer would cause danger of injury to the person or prop- of the man's background. The farmer consequently erty of the other, a duty arises to use ordinary care and permitted the patient to come and go freely during skill to avoid such danger.'" non-working hours, the patient borrowed a car, drove We depart from this fundamental principle" only to his wife's residence and killed her. Notwithstand- upon the balancing of a number of considerations": ing the lack of any special relationship between the major ones are the foreseeability of harm to the plain- Veterans Administration and the wife, the court found tiff, the degree of certainty that the plaintiff suffered the Veterans Administration liable for the wrongful injury, the closeness of the connection between the death of the wife, defendant's conduct and the injury suffered, the moral In their summary of the relevant rulings Herning blame attached to the defendant's conduct, the policy and Maximov conclude that the case law should dis- of preventing future harm, the extent of the burden to pel any notion that to impose on the therapists a duty the defendant and consequences to the community of to take precautions for the safety of persons threat- imposing a duty to exercise care with resulting linbil- ened by a patient, where due care so requires, is in ity for breach, and the availability, cost and prevas- any way opposed to contemporary ground rules on lence of insurance for the risk involved." the duty relationship. On the contrary, there now seems The most important of these considerations in es- to be sufficient authority to support the conclusion tablishing duty is foresceability. As a general princi- that hy entering into a doctor patient relationship the ple, a "defendant owes a duty of care to all persona therapist becomes sufficiently involved to assume
tient himself, but also of any third person whom the CALIFORNIA SUPREME COURT 121 doctor knows to be threatened by the patient." (Flem- ing & Maximov, The Patient or His Victim: The Ther- While the discharge of this duty of due care will nee- apist's Dilemma (1974) 62 Cal.L. Rev. 1025, 1030.) essarily vary with the facts of each case, in each in- Defendants contend, however, that position of a stance the adequacy of the therapist's conduct must be duty to exercise reasonable care to protect third per- measured against the traditional negligence standard soos is unworkable because therapists cannot accu- of the rendition of reasonable care under the circum- rately predict whether or not a patient will resort to stances. As explained in Fleming and Maximov, The violence. In support of this argument amicus repre- Patient or His Victim: The Therapist's Dilemma (1974) seating the American Psychiatric Association and 62 Cal.L Rev. 1025, 1967: "... the ultimate question other professional societies cites numerous articles of resolving the tension between the conflicting inter- which indicate that therapists, in the present state of ests of patient and potential victim is one of social the art, are unable reliably to predict violent acts; their policy, not professional expertise.... In surn, the ther- forecasts, amicus claims, tend consistently to over- apist owes a legal duty not only to his patient, but also predict violence, and indeed are more often wrong to his patient's would-be victim and is subject in both than right. Since predictions of violence are often er- respects to scrutiny by judge and jury."... roneous, amicus concludes, the courts should not ren- The risk that unnecessary warning may be given is der rulings that predicate the liability of therapists a reasonable price to pay for the lives of possible vic- upon the validity of such predictions.... tims that may be saved. We could hesitate to bold that We recognize the difficulty that a therapist en- the therapist who is aware that his patient expects to counters in attempting to forecast whether a patient attempt to assassinate the President of the United presents a serious danger of violence. Obviously we States would not be obligated to warn the authorities do not require that the therapist, in making that de- because the therapist cannot predict with accuracy termination, render a perfect performance; the thera- that his patient will commit the crime, pist need only exercise that reasonable degree of Defendants further argue that free and open com- skill, knowledge, and care ordinarily possessed and munication is essential to psychotherapy, that "Unless exercised by members of [that professional specialty] a patient... is assured that ... information (revealed under similar circumstances." Within the broad range to him) can and will be held in utmost confidence, he of reasonable practice and treatment in which profes- will be reluctant to make the full disclosure upon sional opinion and judgment may differ, the therapist which diagnosis and treatment... depends." The giv- is free to exercise his or her own best judgment with ing of a warning, defendants contend, constitutes a out liability: proof, aided by hindsight, that he or she breach of trust which entails the revelation of confi- judged wrongly is insufficient to establish negligence. dential communications. In the instant case, however, the pleadings do not We recognize the public interest in supporting ef- raise any question as to failure of defendant therapists fective treatment of mental illness and in protecting to predict that Poddar presented a serious danger of the rights of patients to privacy, and the consequent violence. On the contrary, the present complaints al- public importance of safeguarding the confidential lege that defendant therapists did in fact predict that character of psychotherapeutic communication. Poddar would kill, but were negligent in failing to Against this interest, however, we must weigh the public interest in safety from violent assault... Amicus contends, however, that even when a ther- We realize that the open and confidential character apist does in fact predict that a patient poses a serious of psychotherapeutic dialogue encourages patients to danger of violence to others, the therapist should be express threats of violence, few of which are ever ex- absolved of any responsibility for failing to act to pro- ccuted. Certainly a therapist should not be encour tect the potential victim. In our view, however, once a aged routinely to reveal such threats, such disclosures therapist does in fact determine, or under applicable could seriously disrupt the patient's relationship with professional standards reasonably should have deter his therapist and with the persons threatened. To the mined, that a patient poses a serious danger of vio contrary, the therapist's obligation to his patient re- lence to others, he bears a duty to exercise reasonable quire that he not disclose a confidense was ich wam.
I 22 AUTONOMY RIGHTS even then that he do so discretely, 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 revelation of a communication under the above circumstances is not a breach of trust or a violation of professional ethics; as stated in the Principles of Med- ical Ethics of the American Medical Association (1957), section 9: "A physician may not reveal the confidence entrusted to him in the course of medical attendance ... unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community" (Em- phasis added.) We conclude that the public policy fa- voring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.... For the foregoing reasons, we find that plaintiffs complaints can be amended to state a cause of action against defendants Moore, Powelson, Gold, and Yan- dell and against the Regents as their employer, for breach of a duty to exercise reasonable care to protect Tatiana imposing a duty on psychotherapists to wam a poten- tial victim against harm. While offering virtually no benefit to society, such a duty will frustrate psychi- atric treatment, invade fundamental patient rights and increase violence. The importance of psychiatric treatment and its need for confidentiality have been recognized by this court. "It is clearly recognized that the very practice of psychiatry vitally depends upon the reputation in the community that the psychiatrist will not tell." (Slovenko, Psychiatry and a Second Look at the Med- ical Privilege (1960) 6 Wayne L. Rev. 175, 188.) Assurance of confidentiality is important for three reasons. CLARK, Justice (dissenting). Until today's majority opinion, both legal and med- ical authorities have agreed that confidentiality is es- sential to effectively treat the mentally ill, and that imposing a duty on doctors to disclose patient threats to potential victims would greatly impair treatment. Further, recognizing that effective treatment and soci- ety's safety are necessarily intertwined, the Legisla- ture has already decided effective and confidential treatment is preferred over imposition of a duty to wam. The issue of whether effective treatment for the mentally ill should be sacrificed to a system of warn- ings is, in my opinion, properly one for the Legisla- ture, and we are bound by its judgment. Moreover, even in the absence of elear legislative direction, we must reach the same conclusion because imposing the majority's new duty is certain to result in a net in crease in violence, DETERRENCE FROM TREATMENT First, without substantial assurance of confidentiality, those requiring treatment will be deterred from seek- ing assistance. It remains an unfortunate fact in our society that people seeking psychiatric guidance tend to become stigmatized. Apprehension of such stigma-apparently increased by the propensity of people considering treatment to see themselves in the worst possible light creates a well-recognized reluc- tance to seek aid. This reluctance is alleviated by the psychiatrist's assurance of confidentiality. FULL DISCLOSURE Second, the guarantee of confidentiality is essential in eliciting the full disclosure necessary for effective treatment. The psychiatric patient approaches treat- ment with conscious and unconscious inhibitions against revealing his innermost thoughts. "Every per son, however well-motivated, has to overcome resis- tances to therapeutic exploration. These resistances seek support from every possible source and the pos- sibility of disclosure would easily be employed in the service of resistance." (Goldstein & Katz, 36 Conn. Bar J. 175, 179.) Until a patient can trust his psychi- atrist not to violate their confidential relationship. The unconscious psychological control mechanism of re- pression will prevent the recall of past experiences." (Butler, Psychotherapy and Grinveld: Is Confiden Tality a Privilege or a Righi? (1971) 3 Conn L. Rev. 599.604.) SUCCESSFUL TREATMENT Third, even if the patient fully discloses his thoughts assurance that the confidential relationship will not be breached is necessary to maintain him in his new
CALIFORNIA SUPREME COURT 123 fected. "[T]he essence of much psychotherapy is the contribution of trust in the external world and ulti- mately in the self, modelled upon the trusting rela- tionship established during therapy." (Dawidoff, The Malpractice of Psychiatrists, 1966 Duke LJ. 696, 704.) Patients will be helped only if they can form a trusting relationship with the psychiatrist. All author- ities appear to agree that if the trust relationship can- not be developed because of collusive communication between the psychiatrist and others, treatinent will be frustrated Given the importance of confidentiality to the prac- tice of psychiatry, it becomes clear the duty to war imposed by the majority will cripple the use and ef- fectiveness of psychiatry. Many people, potentially violent-yet susceptible to treatment-will be de- terred from seeking it; those seeking it will be inhib- ited from making revelations necessary to effective treatment; and, forcing the psychiatrist to violate the patient's trust will destroy the interpersonal relation- ship by which treatment is effected. VIOLENCE AND CIVIL COMMITMENT By imposing a duty to war, the majority contributes to the danger to society of violence by the mentally Hll and greatly increases the risk of civil commit- ment--the total deprivation of liberty of those who should not be confined. The impairment of treatment and risk of improper commitment resulting from the new duty to warn will not be limited to a few patients but will extend to a large number of the mentally ill. Although under existing psychiatric procedures only a relatively few receiving treatment will ever present a risk of violence, the number making threats is huge. and it is the latter group-not just the former—whose treatment will be impaired and whose risk of com- mitment will be increased, Both the legal and psychiatric communities recog- nize that the process of determining potential violence in a patient is far from exact, being fraught with com- plexity and uncertainty. In fact precision has not even been attained in predicting who of those having al- ready committed violent acts will again become vio- lent, a task recognized to be of much simpler propor- tions. This predictive uncertainty means that the number of disclosures will necessarily be large. As noted above, psychiatric patients are encouraged to discuss all thoughts of violence, and they often express such thoughts. However, unlike this court, the psychiatrist does not enjoy the benefit of overwhelming hindsight in seeing which few, if any, of his patients will ulti- mately become violent. Now, confronted by the ma. jority's new duty, the psychiatrist must instantaneously calculate potential violence from each patient on each visit. The difficulties researchers have encountered in accurately predicting violence will be heightened for the practicing psychiatrist dealing for brief periods in his office with heretofore nonviolent patients. And, given the decision not to warn or commit must always be made at the psychiatrist's civil peril, one can ex- pect most doubts will be resolved in favor of the psy. chiatrist protecting himself.
Question 12: Confidentiality. (Readings: California Supreme Court. Tarasoff v. Regents of the University of California") (8.25. points) Otto, a school bus driver goes to see a psychiatrist. He complains that his marriage is falling apart, that he is having trouble making enough money to provide for his family, and that he has been chronically depressed. He asks if the psychiatrist can prescribe any antidepressant that won't prevent him from enjoying "a drink or two, now and then." During the course of the session, the driver admits that he actually has 6-8 drinks every night, but only after his day of driving is done. He says that he's only driven his bus after drinking a couple of times all year and that he never gets behind the wheel unless he feels in control." a. According to the Majority Opinion in Turesoff. Regents of the University of California, should the psychiatrist report Otto's conduct to his employer? (Be sure to explain how the doctor would make this determination using the majority ruling in Tarasolf Regents of the University of California) b. According to the Dissenting Opinion in Tarasoffe. Regents of the University of California, should the psychiatrist report Otto's conduct to his employer? (Be sure to explain how the doctor would make this determination using the dissenting opinion in Taresoff Regents of the University of California) c. In your own opinion, should the psychiatrist report Otto's conduct to his employer? Why or why not? Podit a forte of Medical Ethics: Consent Crouch. "Letting deaf People be Deaf and Tucker. "Deaf Culture") (8.25 points)