The Tarasoff Rule: The Implications of Interstate Variation and Gaps in Professional Training

Clinicians in states with statutes or case law that mandate a duty to warn or protect face at least one source of ambiguity: the risk assessment required to determine whether a patient’s threat level is high enough to require the therapist to discharge the duty. In assessing this risk level, clinicians should be aware of state requirements that affect how this threshold is set: whether the victim must be identifiable (most states); whether the threat must be imminent (most states); or whether the threat need not be imminent but must be serious (few states). In addition, even for states that explicitly state that the violence must be “imminent” to impose the duty to warn upon the therapist, clinical commentators often specify different definitions of how the law ought to interpret imminent, ranging from a few days to a few weeks to several months, with state case law also using different notions of what counts as imminent (9). Furthermore, the definition of imminence that is relevant for duty-to-warn cases, where a therapist breaches confidentiality as a result of a threat of imminent violence, may and often does differ from the definition of imminence that is relevant in cases such as civil commitment, where a therapist deprives a patient of liberty as a result of imminent danger to the patient or others (9). This source of confusion has led commentators to recommend that clinicians focus less on the imminence of the threat in Tarasoff cases and more on the patient’s demonstrated capacity to carry out the threat (i.e., whether the patient has a history of violence, whether the patient has experienced situational triggers that have exacerbated violence in the past, and what can be done to intervene) (9, 10).

Once a clinician has decided that a patient poses a threat of violence sufficient to trigger a duty, the limited empirical data that are available on how clinicians actually discharge this duty suggest that many may take liberties with their states’ specific legal guidance. For example, although California state law mandates that clinicians warn potential victims and a law enforcement agency of serious threats of physical violence (11, 12), data from San Francisco suggest that many therapists use involuntary civil commitment for patients who pose a threat (13). This approach may be legally valid if the patient meets the criteria for civil commitment and the therapist determines that the patient no longer poses a threat of imminent violence after the commitment period. Perhaps these therapists pursue commitment because they see it as a more effective means of reducing a patient’s risk than warning a potential victim. Further research should disentangle therapists’ reasons for pursuing a given course of action in states with mandatory statutes to ensure that therapists do not use warnings and civil commitment as substitutes where inappropriate.

In states where a mandatory duty to warn or protect has arisen exclusively from the judiciary, clinicians’ understanding of their specific state’s regulations may be compromised. Arguably, case law is more dynamic than legislative statutes elucidating duties, some of which have remained unchanged over the past 20 years, and the changes in case law may be difficult to interpret, not well publicized, and generally nontransparent. Thus, although clinicians may have heard of Tarasoff and think that they understand its broad implications, case law in their state may offer guidance that differs significantly from the broad implications of the initial Tarasoff case. For instance, after Virginia rejected Tarasoff duties in Nasser v. Parker and before it passed a mandatory Tarasoff statute in 2010, it nonetheless found that allegations that providers had taken responsibility for a psychiatric patient raised questions of fact for a trial, opening up providers to the expense and time of litigation (14). If the case law in a given state is not clear and well publicized, therapists in these states face an additional source of ambiguity in deciding how to handle a violent threat.

Therapists in the second category of states, those with permissive statutes that protect therapists from liability for breach of confidentiality in the case of threats but do not obligate them by statute to warn or protect the potential victim, arguably face more difficulty in determining how to protect potential victims than do therapists in states with mandatory statutes and case law. Therapists in states with permissive statutes have several legally acceptable options when a patient makes a violent threat against an identifiable victim: continue therapy as planned without issuing any warning, change the therapy to contain the threat and protect the potential victim, warn the victim, warn law enforcement, warn the victim and law enforcement, or determine if there are grounds for civil commitment based on the patient’s dangerousness to others.

The first two strategies, where the therapist does not issue a warning, may be more legally risky than the other strategies, since permissive statutes protect a therapist only when he breaches confidentiality and do not necessarily protect a therapist in the following situation: when he does not breach confidentiality, when there are strong reasons for such a breach, and when a victim is hurt. For instance, in Almonte v. New York Medical College (15), a federal district court ruled that a physician training a psychiatric resident studying child psychiatry could have a common law duty to future patients of the resident to warn that the resident had pedophilia, even though Connecticut (whose state law applied) is a permissive-statute state, and so the psychiatrist was not violating a statutory duty.

Although immediately notifying law enforcement and potential victims of a threat may be the safest course of action legally, there are moral reasons supporting other strategies in permissive states. Most simply, the duty to protect is grounded in the moral right of the potential, identifiable victim to avoid preventable death or substantial, debilitating physical injury. The potential victim has a moral claim against the clinician who, by virtue of his relationship with the patient and his knowledge of the patient’s violent intentions, is in a position to try to prevent this serious harm from occurring. Therefore, the moral duty to protect involves a goal for the clinician, to protect the victim, while minimizing the extent to which various interests of the patient are set back in pursuit of this goal, including liberty interests and some degree of privacy in clinical communication. This moral basis serves as the foundation for legal duties to protect, which specify cases where legal requirements of clinician–patient confidentiality are removed to allow a clinician to try to avert harm to an identifiable victim.

We argue that a clinician can best show respect for patient rights while protecting potential victims by first alerting a patient that he is considering a notification and discussing whether the statements or gestures indicating violent intent were made sincerely. For instance, a patient may express a violent fantasy in a moment of anger, and the therapist might explore the extent to which the patient plans to act on the fantasy and whether he has the means to do so. The law bolsters this approach to assessing the sincerity of violent fantasies by generally holding that a patient’s violent fantasies do not necessarily impose a duty to warn upon the therapist, unless the patient has a history of violence or other risk factors (10). The therapist should then indicate that if the threat is sincere, he will notify the authorities and the potential victim. These steps should be combined with the continuation of intensive counseling.

Data support this strategy of working collaboratively with a patient: therapists who talk with patients first about the need to report a threat, as opposed to unilaterally notifying law enforcement and a potential victim with no disclosure to the patient, report that the warning either had a positive or no impact on the therapeutic relationship. Warnings that were not discussed beforehand had negative ramifications for this relationship (16). Therefore, respecting patients through disclosure about possible warnings and discussion about the threat has both intrinsic value in supporting patient interests and instrumental value in minimizing damage to the therapeutic relationship. In turn, an intact therapeutic relationship may better alleviate a patient’s future violent intentions than a damaged relationship or one where the patient breaks off all contact. Of course, there may be contexts in which it is difficult or impossible to discuss the warning with the patient (for example, if the therapist decides that the threat warrants a warning after the end of a therapeutic session and the patient has broken off all contact) but in general, therapists should attempt discussion to show respect to the patient and his trust in the therapist.

Therapists in the third category of states (those without any statutory or common law guidance) face a more fraught set of options than therapists in states with either a mandatory or permissive duty, since therapists in this third category have neither an established affirmative duty to warn or protect nor a legally established justification to breach confidentiality in exercising such a warning. As a result, therapists in these states are open to significant legal risk no matter how they proceed: if they breach confidentiality, a patient could sue, and if they fail to breach confidentiality and a victim is harmed, the victim could sue. That legal risk could be reduced by the passage of legislation, exemplified by the American Psychiatric Association’s (APA) Model Statute or another state’s statute that clarifies therapists’ duties regarding potentially violent patients.

We have noted that the passage of a statute clarifying a therapist’s duty to warn or protect reduces the legal risk a therapist faces, but the existence of a statute by no means eliminates this risk, because of intrastate conflicts and inconsistencies between statutes and judicial rulings, which highlight that a therapist’s risk is by no means eliminated by the existence of a statute. A few examples: the Arizona Supreme Court found that Arizona’s Tarasoff statute did not shield therapists from exposure to civil damages because such a limitation would violate the Arizona Constitution (17). The Utah Supreme Court extended therapists’ duties beyond what Utah’s original Tarasoff statute prescribed, holding them liable in cases where they should know of a threat as well as in cases where they have actual knowledge (18). The Supreme Court of New Hampshire held that New Hampshire’s Tarasoff statute does not pre-empt common law duties to warn, and so medical professionals can be subjected to common-law tort claims, even if they do what the Tarasoff statute mandates (19). Courts in several states have issued verdicts seemingly in tension with Tarasoff statutes without citing or distinguishing the statutes (20, 21).

In addition to interstate and intrastate variation in the duty to warn or protect, therapists also face variability in the purpose for which a state’s case law and/or statute will be invoked in legal cases. A victim’s family may prosecute a therapist for failing to discharge the duty appropriately, or a therapist may use duty to warn or protect statutes as a legal shield if prosecuted for a breach of confidentiality by a client whom the therapist reported. In other words, the statutes can be a liability if a therapist inappropriately does nothing and a client commits a violent act, or the statutes can be a form of protection if a therapist appropriately does something and a client sues for breach of confidentiality. The diversity of uses of these statutes highlights why therapists and other covered mental health professionals should have a nuanced understanding of their state’s regulation or case law. The next section reviews whether therapists and allied health and legal professionals achieve this level of understanding.

tarasoff-related training is given to clinical psychologists and psychiatrists in both formal and informal settings, with formal training related to the duties likely to fall under the heading of ethics or forensic education. For psychologists, the American Psychological Association requires training in ethics as a part of accredited PhD programs, and their most recent survey of continuing education standards found that 26 states require between 1.5 and 6 hours of training in ethics annually for licensure maintenance (23, 24).

While future psychiatrists are in medical school, they receive substantial training in ethics. A 2008 survey found that the average medical school required 35.6 hours of bioethics instruction, yet this training may be nonspecific to the situations that mental health professionals face (25). Once they choose the specialty of psychiatry, psychiatrists receive training in Tarasoff-related duties from two sources during residency: formal training and response to informal, on-the-job events. For formal training, one survey of training content in psychiatric residency found that more than 88 percent of programs taught about the duty to warn, with more than 10 percent of programs not responding and only 0.7 percent saying that they did not teach about the duty (26). This formal training is supplemented by informal, on-the-job situations that prompt the resident to discharge a duty to warn or protect. One survey of second-through fourth-year residents in psychiatry found that 22 of the 46 residents surveyed had issued a Tarasoff warning at some point during their training (27). Therefore, for both clinical psychologists and psychiatrists, topics related to the duty to warn or protect appear to be well covered through both formal education and hands-on experiences. However, questions remain about the prevalence and depth of education about a crucial step in the process of potentially discharging a duty to warn or protect: risk assessment to determine the threat level of the patient. A 1997 survey of psychiatric residents found that a third received no training in assessing and managing a patient’s risk of violence and another third described their training as inadequate (28); a 1990 survey of psychologists reported a mean of 3.3 hours and a median of 0 hours of formal training in risk assessment (29). Although training in risk assessment may have increased in quantity since the time of these surveys and although some argue that actuarial tools for violence risk assessment such as the Violence Risk Appraisal Guide (VRAG) are more accurate predictors of violence than unstructured clinical judgment (30), clinicians still need training on how to translate scores on the measures into complex decisions in the clinical setting (31). The education of mental health professionals in Tarasoff-related duties not only should outline the scope of these duties but should also teach practical risk assessment and management techniques that clinicians need for appropriate assessment and handling of a threat. For instance, therapists should learn to make a distinction between a patient who makes a threat by communicating an intent to harm versus one who poses a threat (i.e., has planning and building capacity for a violent act) (32). Training should emphasize that, although the law focuses on therapists issuing warnings after violent communication, a therapist’s ethics-related obligations should extend to patients who pose a legitimate threat to identifiable others.

Unfortunately, simply quantifying the amount of formal and hands-on training related to Tarasoff may offer too rosy a picture of the extent to which psychiatrists and psychologists understand the duties mandated or permitted by their specific states. In one study, Pabian et al. (33), found that 63 percent of the psychologists surveyed had completed a graduate course in ethics, and 87 percent of those had received instructions on the Tarasoff ruling and their responsibilities for dangerous patients. Most clinicians appeared confident that this training adequately informed them about their duties, with only 10 percent expressing uncertainty about their legal duties surrounding potentially violent patients.

However, despite such confidence, 76 percent of the psychologists surveyed were incorrect in selecting the statement that best described their given state’s duty-to-protect law. The errors stemmed from a misunderstanding of the circumstances that trigger a duty to protect, with many therapists incorrectly thinking that the duty extends beyond the bounds of imminent danger in their state and a misunderstanding of the level of threat that triggers a duty to protect, with 41 percent of therapists incorrectly believing that they should warn the victim and law enforcement when the likelihood that patient will follow through on the threat appeared low or uncertain (33). Perhaps owing to this inflated understanding of the circumstances and threat level that trigger a duty to protect, the therapists reported experiencing a scenario requiring duty to warn or protect fairly frequently, approximately once every two years. The results of this survey suggest that although psychologists are aware of Tarasoff and receive graduate ethics training, many are confused or misinformed about the specifics of their states’ statutes and common law on the duty to warn or protect. The gap in knowledge that is understandable, given the complexity of the regulations, but nevertheless is a gap that training and continuing education programs should work to remedy.

The analysis by Pabian et al. (33) was limited to psychologists, most of whom practiced in outpatient settings. It does not include psychiatrists. Furthermore, at least 20 states seem to extend the duty to physicians who are not necessarily credentialed in psychiatry as long as the physician purports to offer mental health treatment (Table 2). We are not aware of data that assess psychiatrists’ knowledge of their state’s duty to warn or protect statutes and case law or the knowledge of nonpsychiatrist physicians, social workers, nurse practitioners, and other health professionals.

Further research on allied health professionals’ understanding of Tarasoff is needed, as behavioral health care increasingly relies on nonpsychiatrist and nonpsychologist providers. Health care reform should catalyze the move toward integrated care in which primary care physicians, nurse practitioners, health counselors, and other nonspecialty providers may serve as a frequent point of contact for persons with psychiatric disorders (34). Although some provider types (e.g., psychologists and psychiatrists) are covered by Tarasoff-related duties in most states (Table 2), other provider types (e.g., nonpsychiatrist physicians) are covered in only a subset of states. Health professionals not explicitly covered by their states’ duty to warn or protect statutes lack clear statutory protection from liability if they breach confidentiality to report a Tarasoff-type threat. They are in a risky situation resembling that of health professionals in states that altogether lack duty to warn or protect statutes.

Research on other potential parties in the equation (i.e., law enforcement professionals or institutional legal and risk management offices who may be informed of a patient’s potential dangerousness) is also scarce. One 1998–1999 survey of Michigan and North Carolina police officers found that only 3 percent were familiar with the Tarasoff ruling and only 24 percent reported that their stations had specific policies on when and how to warn potential victims of a violent patient, despite the fact that 45 percent of stations had received at least one Tarasoff-related warning from a mental health professional (35). No empirical scholarship of which we are aware examines how the legal and risk management offices of institutions such as universities or integrated health care systems advise therapists on how to handle a Tarasoff-related warning.