Current analysis of the Tarasoff duty: an evolution towards the limitation of the duty to protect

Abstract

In 1976, the Tarasoff case established a new legal duty to protect third parties from a psychiatric patient's foreseeable violence. After the Tarasoff case, courts expanded the scope and role of a clinician's duty to protect, sometimes in novel ways. Later interpretations of Tarasoff began to limit significantly the situations in which a duty to protect would attach. Recent Tarasoff-type cases in which courts have rejected the clinician's duty to warn suggest that Tarasoff is declining in significance. The advent of state statutes that codify the establishment and discharge of Tarasoff duty have contributed to a further limitation of the duty to protect. Lastly, when faced with the management of dangerous patients, we advocate for a thorough, well documented assessment of risk of violence as the best means for addressing concern about potential legal liability.

The physician's unique role in preventing violence: a neglected opportunity?

“…Additionally, in the landmark Tarasoff cases (Tarasoff v. Regents of the University of California 1974 and 1976) [78] the ruling established in the state of California a legal duty of health workers to warn and protect potential victims from a patient's foreseeable violence. Since then, some states have codified the health worker's duty to protect specifying how to discharge that duty, some states have declined to uphold the duty to protect in court and some states have not addressed the issue in court or legislation [79]. In states where the duty to protect does apply it is only operative when the patient identifies a specific victim or has a history of violence and there is substantial and compelling reason to believe that the patient will be violent again.…”

Forensic multidisciplinary perspectives of Tarasoff liability: a vignette study

“…The varying states across America adopted the Tarasoff liability to one degree or another and then changed various aspects to it as challenges came before the courts with the result that subtle, and not so subtle, adaptations emerged. After over 30 years, there is a tendency now to view the duty to warn/protect, breach of confidentiality and risk assessment in much more pragmatic terms and for courts to accept certain limitations to the Tarasoff liabilities (Walcott, Cerundolo, & Beck, 2001). However, despite these developments Tarasoff remains highly relevant and is frequently cited as a seminal landmark in medico-legal psychiatry (Monahan, 2007).…”

Policy Needs Regarding the Duty to Protect in Epidemiological Research with High-Risk Populations

“…Over the last 30 years, interpretations of the duty to warn by the courts and state legislatures in the US have evolved through several stages, which have been characterized as expansion, diversification, and retreat (15). More recent legal rulings and state statutes regarding Tarasofflike situations have begun to limit significantly the circumstances in which a duty to protect would attach (17).…”

“…In reviewing a research protocol, if an IRB determines that the researcher will be not be in a position to make a reasonably accurate assessment of the likelihood of harm, then its members should approve the research on the basis that the researcher cannot and should not be held accountable for thwarting an unforeseeable threat, given the constraints of the proposed research protocol. On the other hand, if the research design calls for sustained, in-depth contact, then it is reasonable for an IRB to ask the researcher to include one of the increasing number of tools now becoming available that exhibit satisfactory validity in predicting violence (17). In these cases, researchers would need to make provisions for warning third parties in anticipation of times when the protocol would trigger disclosure.…”