Tarasoff—A Duty to Protect

Confusion may persist surrounding the meaning and proper use of the terms duty to warn vs. duty to protect, and this may in part be due to the fact that there were 2 Tarasoff decisions. The first Tarasoff decision in 1974 created a duty to warn in California, and was based on the special relationship between therapist and patient. ² This first decision was not only unprecedented, but also upsetting to therapists due to its controversial expectation that therapists violate patient confidentiality. One of the most familiar quotes from “Tarasoff I” clarified that the Court was concerned with social policy: “The protective privilege ends where the public peril begins.”

The California Supreme Court reheard the case, and in its 1976 ruling replaced “duty to warn” with a “duty to protect.” ¹ The famous quote from “Tarasoff II,” which was adapted by many states across the country, appeared to make the change clear: “When a therapist determines, or should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim from danger.” Initially, there was significant concern that this exception to confidentiality would have disastrous effects on psychiatric practice, despite the fact that most therapists had embraced such a duty before the Tarasoff ruling.Reference Slovenko ³ Over time, it became clear that the concerns about the potential loss of confidentiality did not have an adverse impact on psychiatric practice.Reference Buckner and Firestone ⁴ Instead, Tarasoff stimulated “greater awareness of the violent patient’s potential for acting out such behavior, encouraging closer scrutiny and better documentation of the therapist’s examination of this issue.” ⁵ More recently, after decades of misunderstanding, California passed legislation in 2013 that unambiguously established a sole duty to protect. ⁵ This recent California statute removed all references to duty to warn, and provides “definitive clarification.”Reference Weinstock, Bonnici, Seroussi and Leong ⁶

Tarasoff Expansion and Contraction

Although Tarasoff applied only in California because it was a State Supreme Court decision, the ruling “reverberated nationally.”Reference Weinstock, Bonnici, Seroussi and Leong ⁶ The duty to protect articulated in Tarasoff was subsequently interpreted more broadly by other courts throughout the U.S. One of the broadest interpretations appears in a Nebraska federal district court’s decision in the 1980 case of Lipari v. Sears, Roebuck & Co. ⁷ This case involved a VA patient who shot strangers in a crowded nightclub, without ever threatening a specific person, and 1 month after terminating psychiatric treatment. The court rejected the Tarasoff limitation to an identified victim, imposing not only a duty on therapists to predict dangerousness, but also a duty to protect unidentified victims in the general public.

The duty was given a remarkable temporal extension in the case of the Naidu v. Laird. ⁸ This case involved a patient with schizophrenia who killed another man in a motor vehicle crash. The patient’s psychiatric history included violent behavior, ramming a police car with his automobile, and driving off the road at high speed. The Supreme Court of Delaware held that 5 and 1/2 months after a hospital discharge was not too long a period to support a finding of negligence when a psychiatrist was found liable for failing to foresee a patient’s potential to act violently. Despite the lengthy time since the patient’s discharge, the Court stressed the “foreseeability” of harm rather than the passage of time.

The duty was extended to property in the Vermont case of Peck v. Counseling Service of Addison County. ⁹ In Peck, a counselor was told by a patient that he intended to burn down another person’s barn. The court’s opinion suggested that both counselors and psychiatrists had a duty to protect not only threatened victims, but their property as well. These and similar cases in the wake of Tarasoff led to significant discomfort among therapists who objected to apparent legal expectations that they foresee all dangerous situations and protect the public at large. Indeed, given psychiatry’s limitations with respect to predicting violence, ethical arguments have been raised about accepting the premise of foreseeing patient violence.Reference Mossman ¹⁰

Two decades after Tarasoff, state legislatures around the country began to reflect ambivalence about the extension of the duty to protect. As a result of therapists’ success in convincing legislatures that their state courts’ rulings created unreasonable expectations, state legislatures created statutes requiring that the threat be clearly foreseeable, and that the duty extended only to reasonably foreseeable victims—not to the general public. These statutes became known as “Tarasoff-limiting statutes,” laying out specific criteria that typically include a credible threat made against an identifiable victim. At present, Tarasoff-limiting statutes have been passed in 39 states.Reference Soulier, Maislen and Beck ¹¹

Some states may lack clear duty to protect statutes, leaving the psychiatrist with little guidance. In such cases, it is helpful to consult with hospital legal counsel and/or one’s malpractice insurance carrier. In those states without a clear statutory legal duty to protect, psychiatrists are often advised by legal counsel to follow the basic Tarasoff rationale and practice as though there was a legal duty. There are compelling reasons for doing so, primarily that acting in accordance with the duty to protect contributes to and improves care of one’s patient.

Duty to Protect—Approach

Psychiatrists should become familiar with the specific Tarasoff duty in their locale, as well as any evolving case law that may create nuances in how the duty is properly carried out. States with duty to protect statutes contain language that can often be distilled down to 2 criteria: (1) an explicit, credible threat that the patient intends and is able to carry out (2) against an identifiable person.Reference Mossman ¹² If these 2 criteria are met, the psychiatrist then has a number of intervention options to consider, depending upon the clinical context. The options most often include those listed in Table 1.

Table 1

Duty to protect options

Although danger to third parties can, in some cases, justify a breach of the therapist’s duty to maintain confidentiality,Reference Appelbaum and Gutheil ¹³ breaching confidentiality should be viewed as a last option, after all other therapeutic options have been exhausted. In essence, confidentiality should be breached only if reasonable clinical efforts seem unlikely to provide adequate protection and resolution. When all reasonable options are untenable, it should be remembered that “trust,” and not absolute confidentiality, is the foundation of the therapeutic alliance. Providing necessary protection “where self-control breaks down is not a breach of trust when it is not deceptive.”Reference Slovenko ¹⁴ Therefore, if circumstances permit, the psychiatrist should inform the patient about the decision to breach confidentiality.

The psychiatrist’s clinical and moral duty in such situations can be viewed as transcending mere legal duty in that one must do what one can “to save our fellow human beings from danger.”Reference Mossman ¹² Psychiatrists should take some comfort in knowing that they have little basis “to fear being sued successfully for a bad outcome if the clinical practice has been reasonable.”Reference Soulier, Maislen and Beck ¹¹ This is particularly the case when it is clear that the psychiatrist’s actions flowed from concerns about the welfare of the patient and threatened third parties.

The psychiatrist should consider an array of options, including hospitalization, warnings, more frequent therapy sessions, starting or increasing medication, and various forms of closer monitoring. The clinical approach can be thought of as similar to the management of an acutely suicidal patient, in so far as addressing the risk of a patient acting on dangerous plans. In the performance of the clinical risk assessment, the psychiatrist should consider contacting collateral sources, such as relatives who may be able to provide important information regarding the patient’s dangerousness.

Past medical records, where applicable, should be reviewed. At the very least, efforts to obtain records should be made and documented. Obtaining and reviewing medical records was at issue in the 1983 case of Jablonski v. United States. ¹⁵ In Jablonski, the duty to protect was extended to include a therapist–patient relationship limited to the emergency room setting. Mr. Jablonski was a violent man who was brought to a VA hospital by his girlfriend after he attempted to rape her mother. The psychiatrist concluded that the patient was a danger to others, but could not be committed under California’s involuntary commitment statute. Jablonski’s medical records revealed that he had a long history of antisocial and violent behavior; however, these records were not requested at the time of his presentation. The girlfriend was warned by emergency room psychiatrists to stay away from him if she feared him. Not long after his discharge from the ER, Jablonski killed the girlfriend. The 9th Circuit Court of Appeals concluded that the hospital had failed to obtain important prior records and to adequately warn the victim.

Finally, past therapists and referral sources should be queried where appropriate, and consultations may be sought.Reference Buckner and Firestone ⁴ Consultation with a psychiatric colleague, as well as hospital legal counsel, should be routine in difficult cases. If this type of careful, reasonable approach is taken (including documentation of the assessment of the pertinent issues and treatment plan), liability becomes unlikely even if harm should occur to a third party.

Evaluation of Credible Threats in Tarasoff Situations

The clinical process of violence risk assessment is beyond the scope of this article, and psychiatrists are encouraged to review the literature on this subject.Reference Buchanan, Binder, Norko and Swartz ^{16 ,} Reference Monahan and Skeem ¹⁷ A “threat” may be defined as a declaration of intent to harm. Reference Turner and Gelles ¹⁸ While threats are common, most are not carried out.Reference Borum, Fein, Vossekuil and Berglund ^{19 ,} Reference Hinman and Cook ²⁰ In contrast to a clinical risk assessment done by a treating psychiatrist, a threat assessment is ideally done by an expert with special training and experience in the field of threat assessment who has familiarity with the current literature, research, and actuarial instruments. A treating psychiatrist would not reasonably be expected to perform a formal threat assessment. When a patient makes a credible threat that he can and intends to carry out, a duty to protect his target has arisen, and the psychiatrist should undertake a thoughtful assessment to address the risk of harm.

There is only a weak association between threats and violence; nevertheless, there is an association. In a study of clinic patients who made threats to kill, assaults were made by over 20% over a 12-month assessment period.Reference Warren, Mullen and Ogloff ²¹ Factors found to contribute to violence risk were substance abuse, prior violence, limited education, and untreated mental disorders. The combination of history of substance abuse, not receiving mental healthcare, having minimal education, and history of violent behavior predicted violence by threateners.

It is important to first address the threat toward third persons as a therapeutic issue in alliance with the patient. For example, the psychiatrist may explore with the patient what it would mean for the patient if the threat were to be acted upon. This approach will not only produce valuable risk assessment data, but will also appropriately address relevant clinical issues. The psychiatrist may find it helpful to consider the topics of questioning listed in Table 2, which can be recalled by the mnemonic “ACTION,” or Attitudes, Capacity, Thresholds, Intent, Others’ reactions, Noncompliance.Reference Borum and Reddy ²²

Table 2

Lines of inquiry in Tarasoff situationsReference Borum and Reddy ²²

When evaluating whether the patient has already crossed a “threshold” in terms of threat-related behaviors, it may be helpful to ask the patient what steps he has taken so far in furtherance of his intentions. The threat assessment literature refers to such acts as “warning behaviors,” which are defined as dynamic, acute behaviors suggestive of impending violence.Reference Meloy and O’Toole ²³ For example, preparatory actions, such as purchasing a gun or rehearsing plans for an attack, are highly concerning warning behaviors that push violent ideation across a threshold into physical reality.

The psychiatrist should also be aware that warnings (to police or third parties) alone may ultimately provide no protection, because they do not address the cause of the threat.Reference Weinstock, Bonnici, Seroussi and Leong ⁶ In fact, it is possible that a warning made in haste may actually increase the risk of violence. This phenomenon has been called “the intervention dilemma,” which posits that taking certain courses of action in response to a threat may actually increase the risk of violence, and in some cases, no direct action may be preferable.Reference White and Cawood ²⁴ In some cases, certain responses may actually enflame a threatening patient by challenging or humiliating him. For this reason, there is no single best approach to risk management. Rather, risk management approaches must consider the significance of individual-specific nuances in the totality of the circumstances of each case.

If it is ultimately decided that a warning must be made to intended victims or police, it should be as discreet as possible to protect the patient’s confidentiality, and remain consistent with the requirements of the law in one’s state. Warnings may include statements made by the patient that are necessary to convey the serious intent of the threat to the victim. ²⁵ Upon deciding to notify police, the psychiatrist should call the police in the precinct nearest to the patient. In addition, it is helpful to ask for and document the name and badge number of the person taking the report. It is preferable to give oral rather than written warnings due to the fact that the psychiatrist has determined the threat to be imminent, and an oral warning is likely to be received by the police and/or the intended victim sooner than a written warning.

Documentation

The standard of care does not require the psychiatrist to predict violence or prevent all tragic outcomes. Rather, the standard of care requires the psychiatrist to “exercise the skill, knowledge, and care normally possessed and exercised by other members of their profession.”Reference Dobbs ²⁶ Documentation showing that the psychiatrist (1) performed a reasonable assessment of risk and then (2) provided a rationale for implementing a reasonable risk management plan will be very likely to provide sufficient evidence that the standard of care was met.

The importance of good clinical documentation cannot be overstated. It is the central piece of evidence in every malpractice trial, and good documentation has stopped many malpractice cases from even proceeding to trial. Documentation serves many purposes. It informs patient treatment and management, and communicates these important data to other relevant staff for future consideration when they are tasked with the patient’s care. This article focuses on how documentation can reduce liability risk. In real world clinical practice, it is simply not possible to “document everything,” and there must necessarily be limits to the amount of documentation. Nevertheless, the psychiatrist should strive to document important clinical matters contemporaneously. When the psychiatrist does not document his reasoning, there will be no evidence to show that he was thoughtful, prudent, and used reasonable professional judgment.

When documenting, one should abide by the rule of austerity. Document the important facts and conclusions in an objective tone. It is important to avoid waging battles of professional disagreement in the progress notes, as this will be seized upon by plaintiff’s counsel and portrayed in a manner damaging to the defendant psychiatrist’s case.

When noting an action taken in furtherance of a risk management plan (eg, committing or not committing an individual, increased frequency of appointments, etc), it is essential to include a statement, however brief, of the rationale for the action. For example, the psychiatrist should document that she considered the option of civil commitment and the clinical basis for rejecting or proceeding with that option. Whenever the clinical situation requires the involvement of family members, the psychiatrist should document instructions and information given to both the patient and the family. Consider noting whether they agree with the treatment decisions, as well as noncompliance with treatment recommendations. Unrecorded instructions or conversations with family members will likely become points of contention after a suit is filed.

The issue of how much documentation is appropriate may be a source of confusion to busy psychiatrists. It has been suggested that within appropriate bounds, the more pertinent objective findings the documentation contains, the better the portrayal of competent care will be.Reference Mossman ²⁷ However, this raises concerns about appropriate use of the psychiatrist’s time, as well as associated issues with excessive documentation. Certain elements should always be present in the documentation; however, the psychiatrist should attempt to document smarter, not longer. Documentation should be succinct and thoughtful, yet not excessive.

The psychiatrist should document as though each note will be an exhibit in court. Indeed, in the event of a lawsuit, this is precisely what will occur. In many cases, the relevant notes are enlarged and printed out on poster board for viewing by a jury. Thus, the psychiatrist should see herself as documenting a court exhibit as opposed to a note that only she will view. To the extent possible, the psychiatrist should include direct quotes from the patient. Documented quotes such as “I haven’t had any thoughts of harming (the victim)” or “I no longer have any guns in my house” convey critical clinical and risk management information. In malpractice trials, patient quotes are considered powerful evidence, as the very words/thoughts of the patient appear preserved, and must be taken at face value unless proven unreliable. It is also helpful in complex cases to document evidence that the patient is reasonably competent to handle responsibilities such as considering and weighing treatment advice, seeking emergency attention, and employing coping skills in the face of stress. This information may be necessary to counteract jurors’ inclination to believe that all psychiatric patients are either incompetent or otherwise completely controlled by aberrant thoughts.Reference Mossman ²⁷

The use of check boxes and various template forms have become more widely used, likely due to psychiatrist time constraints and increasing use of electronic health records (EHR). These types of documentation may carry unforeseen liability risks. Check box forms are necessarily limited to the predetermined items. Thus, they may encourage psychiatrists not to “think outside the box,” should the form not address areas that the psychiatrist ought to consider and document. Another type of form sometimes seen is part check box and part note. However, the space left for note taking is typically scant, while the check box section overwhelms the page. A systematic violence risk assessment remains a necessity, and the process cannot be abdicated in favor of risk assessment forms.Reference Simon ²⁸

Mechanical completion of forms or “checklists” may engender a false sense of security about the patient’s risk of violence, as well as preclude a more thoughtful analysis of the patient’s clinical risk.Reference Simon ²⁹ Another problem with check box notes involves how the note will be viewed if a box is ever left unchecked. For example, if a box is left blank, this may be portrayed by plaintiff’s counsel as neglected or incomplete care. Related to the liability risks of mechanical or mindless documentation is the tendency for doctors using modern EHRs to cut and paste, instead of crafting an appropriate and contemporaneous narrative. Often done for time saving reasons, this practice may cause the psychiatrist to neglect important nuances of the clinical encounter in the documentation.

In difficult cases, appropriate consultation should be sought and documented. It will be difficult for a plaintiff’s attorney to prove that “no reasonably prudent psychiatrist” would have made a decision at issue, when there are 2 psychiatrists arriving at the same conclusion. Another key documentation principle in cases of potential third party danger is the importance of not leaving “loose ends” in the notes. Whenever issues of risk are raised in the notes, they should be addressed—preferably with a risk management plan as described in the next section. A risk management plan should be crafted immediately after the clinical risk assessment has been completed. It may be necessary to obtain collateral data from mental health records, family members, or other social contacts. Keep in mind that in the case of a psychiatric emergency (eg, risk of violence or suicide), the need to preserve life supersedes the need to obtain consent from the patient. In most circumstances, this will mean that obtaining the patient’s consent to contact family is not necessary, but this exception to consent should be documented contemporaneously.

The Risk Management Plan

From a legal standpoint, psychiatric malpractice cases involving harm to third parties often hinge on the issue of foreseeability. Further, the law considers 2 basic types of error when considering the issue of foreseeability and whether or not the psychiatrist exercised professional judgment: (1) errors of fact and (2) errors of judgment. An error of fact is considered to be a “mistake about a fact that is material to a transaction.”Reference Black ³⁰ For example, an error of fact occurs when the psychiatrist bases a clinical judgment on erroneous or untrue beliefs, such as might occur when the psychiatrist fails to review a patient’s history or lab results prior to making a substantive clinical decision. Psychiatrists are likely to be found negligent for errors of fact.

In contrast, an error of judgment occurs when the psychiatrist makes an informed clinical decision in good faith that turns out to have been a mistake. The psychiatrist is unlikely to be held liable for mere error in professional judgment. ³¹ This is sometimes referred to as judgmental immunity or the “error of judgment rule,” which states, “A professional is not liable to a client for advice or an opinion given in good faith and with an honest belief the advice was in the client’s best interests, but that was based on a mistake either in judgment or in analyzing an unsettled area of the professional’s business.”Reference Black ³⁰ Contemporaneous documentation provides the most believable evidence that the psychiatrist was diligent in gathering facts prior to exercising clinical judgment.

The psychiatrist should document that the option of involuntary hospitalization has been considered, and the clinical basis for rejecting, or proceeding with that option. In addition, there should be documentation of actions taken (and why) and those rejected (and why). The risk assessment documentation should include some form of analysis of risk factors, and a general estimate of overall risk level (low, moderate, or high). This should be followed by a treatment plan (or risk management plan—see below) that directly addresses the relevant dynamic risk factors.

The basic principle behind the risk management plan is to identify all those risk factors that are amenable to treatment interventions (dynamic risk factors) and to target them with reasonable treatment interventions.Reference Mills, Kroner and Morgan ^{32 ,} Reference Knoll ³³ The following section consists of a clinical vignette and sample violence risk management plan in the case of Mr. A. Note how each dynamic risk factor is targeted with interventions that are reasonable and appropriate to the patient’s clinical situation.

Clinical Vignette—The Case of Mr. A

Disclosures

The author has nothing to disclose.