Duty to Warn

Abstract

In law, duty to warn states that a party may be held liable for damages sustained to a second party, if the first party had an opportunity to warn the second, and failed to do so. This concept was applied to mental health practitioners in the landmark California Supreme Court case, Tarasoff v. Regents (hereafter known as Tarasoff I ), which established the duty of a therapist to warn foreseeable victims of patients. In the rehearing of Tarasoff I in 1976 (hereafter known as Tarasoff ), the court clarified that the duty was to protect, with warning a possible victim being one way of discharging this duty. For the past four decades, both therapists and courts have wrestled with the implications of the Tarasoff duty. In the United States, the majority of states have adopted Tarasoff‐like statutes, with various interpretations and limitations. Canada and the United Kingdom have also considered Tarasoff‐like statues, but to date, have mostly relied on an unlegislated concept that public protection typically supersedes patient confidentiality. This article examines the history of duty to protect, before and after Tarasoff, controversies surrounding this duty, and current trends.