Potential erosion of psychotherapist–patient privilege beyond California: dangers of “criminalizing” Tarasoff*

Abstract

The "dangerous patient exception" to psychotherapist-patient privilege, adopted almost a decade before the celebrated case of Tarasoff v. Regents of the University of California (1976), was mentioned in a footnote to that decision in the context of an analogy. Although intended to permit testimony in civil commitment proceedings, this exception has been used to "criminalize" the Tarasoff duty in California. California courts eroded the privilege initially primarily to permit victims to sue psychotherapists and later to require psychotherapists to testify against their patients in criminal proceedings and appear to have confused evidentiary privilege and confidentiality. If consistent, similar reasoning in California in the future should allow therapists to testify against their patients if they were civilly committed in the past for dangerousness and attorneys to testify against their clients in criminal cases if at some earlier time they believed their clients represented a risk of future harm. Although most other jurisdictions may not word their privilege exceptions for civil commitment in the same way as California, most states have some type of privilege exception for civil commitment that could allow for such an interpretation. The United States Supreme Court in Jaffee v. Redmond (1996) found a psychotherapist-patient privilege, but stated in a footnote that an exception to the privilege would exist if a serious threat of harm to the patient could be averted only by means of disclosure by the therapist. Other jurisdictions have begun to consider these issues. Rather than being unique to California, similar reasoning could lead to the "criminalization" of Tarasoff in other jurisdictions and thereby compel therapists outside California to testify against their patients in criminal proceedings.

Law & Psychiatry: Privilege in the Federal Courts: Should There Be a "Dangerous Patient Exception"?

“…Entire sessions have been stripped of the protections of privilege because threats were uttered therein, and clinicians have testified not just about threats per se but about the entire context of therapy that led them to view the risk as real (11,12). California, which has had a statutory dangerous patient exception for many years, is the prime example of how the courts can exploit an exception once created.…”

Law & Psychiatry: Privilege in the Federal Courts: Should There Be a "Dangerous Patient Exception"?

“…Hence, therapists' testimony regarding patient threats has been ruled admissible at death penalty hearings after guilt has been decided and to prove premeditation so as to facilitate conviction for first-degree murder, rather than a lesser level of homicide. Entire sessions have been stripped of the protections of privilege because threats were uttered therein, and clinicians have testified not just about threats per se but about the entire context of therapy that led them to view the risk as real (11,12). Indeed, in a number of cases patients have been charged with crimes exclusively on the basis of threats voiced to their therapists, though they had already been hospitalized and had never actually attempted to harm another person (13).…”

Tarasoff at Twenty-Five

“…Some courts have melded the dangerous patient exception to privilege with the Tarasoff exception to confidentiality (also conceived to prevent future violence), to make psychotherapists into obligatory witnesses for the prosecution against their patients with respect to purely past acts, reasoning that confidentiality is permanently lost once a Tarasoff duty arises, even if no warning is given. 10 Some commentators have denounced this "criminalization" of Tarasoff, 11 and one court has agreed. 7…”