tarasoff liability: its impact for working with patients who threaten others

NURSING STUDIES

PERGAMON International Journal of Nursing Studies 35 (1998) 109-l 14

Tarasoff liability: its impact for working with patients who threaten others

Tom Mason Dcpartmwt qfNursing, Whelan Building, Liwrpool Unimwit~. Liverpool L69 3GB, U.K

Abstract

Few court rulings can have had the international impact on mental health professionals than the case of Tarasoff in the U.S.A. For psychiatric nurses the issues pertaining to this case affects the everyday working practices for those working with patients who, at one stage or another, threaten the welfare of others. This is as much the case for forensic psychiatric nurses as it is for general psychiatric nurses, and indeed any nurse who receives a threat, regarding a third party. from a patient. This paper sets out the brief history of the Tarasoff case and highlights the main issues for practitioners. Tarasoff and the problem of social control is discussed and the professional concerns regarding the prediction of violence and the duty to third parties are debated. The ramifications of the Tarasoff case, in terms of its restrictions and extensions. are outlined. and the impact for carers is discussed. $2 1998 Elsevier Science Ltd. All rights reserved

Kr~words: Tarasolr liability; Duty to protect; Third parties; Confidentiality; Social control; Forensic patients: Mentally disordered offender,

1. Introduction

In dealing with forensic patients, in which a crucial element is likely to be an assessment of whether he or she will cause harm to others, the importance of this prediction is manifold. In such decisions regarding the dangerousness of patients it is a sobering thought that the wrong decision could mean either years of incarceration for a patient who would not harm others or the creation of victims with all the pain, suffering and devastation that this brings for all those closely associated on both sides of the offender-victim divide. Therefore, knowing one’s patient takes on important new dimen- sions which can cause apparent conflicts of interest for mental health professionals. Serving the two masters of the patient and the victim as well as all the other important elements of duty, professionalism and conscience can be a daunting task.

Whereas in general mental health settings the focus of the professionals’ attention is fundamentally focused upon the bi-polar unit of patient&professional, in some other areas of health care, including forensic services, the trajectory of concern involves a tripartite structure of

professional, patient and victim with numerous fringe concerns. Information received from the patient regarding third parties can be confusing and complex, which may cause considerable problems regarding confidentiality and the duty to warn or protect others. Material that forensic mental health professionals receive. and interpret, is done so with regard to this mul- tifactorial dynamic. Furthermore, as individuals our- selves we operate with varying degrees of skill, experience and knowledge and each interpretation is subjectively laden irrespective of the abundance of approaches to risk assessment that claim a degree of objectivity. Con- temporary trends in managing the difficult areas of confidentiality, duty to protect, and risk assessment has a historical anchorage in what has become known as Tar- asoff liability.

2. History of Tarasoff

In the early seventies Prosenjit Poddar, a University of California male graduate student, dated a young woman

002l~-7489~YX Sl9.00 ( 1998 Elsevier Science Ltd. All rights reserved. PII: so020 7489(9x)00003-0

110 T. Muson/lnt. J. Nurs. Slud. 35 (199X) 109-114

by the name of Tatiana Tarasoff for a short time. After the brief relationship ended Poddar began therapy with a trained psychologist. During the therapy sessions Poddar informed his therapist that he intended to kill his former girlfriend Tatiana Tarasoff. The psychologist, unsure as to what to do, sought supervision, and following which, he decided to contact the University campus police. The police apprehended Poddar and questioned him. However, they released him on the grounds that he appeared quite rational during the interview and had promised to stay away from MS Tarasoff and, furthermore, claimed that he would not harm her. This Poddar complied with for some time. However, two months after this event he went to Tarasoff s home and brutally mur- dered her. Although the psychologist had initiated the contact with the police they at no stage informed MS Tarasoff of any specific threat nor generally warned her of any potential danger.

Tatiana Tarasoff s parents subsequently filed suit on a number of tort theories (Perlin, 1992) but the most per- tinent one to the mental health professionals included the failure on the part of the psychologist to issue any warning to Tatiana or her parents. They claimed that the therapist was negligent in not alerting them to the fact that Poddar had threatened to kill Tatiana or that Poddar was considered a “grave danger” to her (Tarasoff vs. Regent, 1976).

In a pre-trial ruling, the court stated that: “once a therapist in fact determines, or under applicable professional standards should have determined, that a patient poses serious danger of violence to others, he bears a duty to exercise reasonable care to warn the foreseeable victim of that danger” (Tarasoff, 1976; p. 345). The case did not come to trial as it was eventually settled out of court. However, despite this, the pre-trial ruling became profoundly influential in stimulating the debate concerning the duty of therapists to warn potential victims.

Mental health organisations were alarmed at the ramifications of this ruling especially the American Psychiatric Association. An amicus curiae brief was filed by the Northern California Psychiatric Society in concert with a number of organisations. The brief focused on two main issues:

1. That mental health professionals cannot predict violence with any certainty, and

2. That warning the intended victim would breach the confidentiality of the therapist-patient relationship, thus jeopardising the climate of trust essential to psychotherapy (Kaufman, 1991).

In this second hearing the California Supreme Court judged that the impetus of the therapist should be a duty to protect rather than a duty to warn. They went further by stating: “when a therapist determines, or pursuant to

the standards of his profession 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 against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances” (Tarasoff, 1976; p. 340).

Therefore, by this adjudication, the Supreme Court rejected the argument that mental health professions because of their inability to accurately predict dangerousness could not be held liable. They emphasised that the failure was not in the accuracy of prediction but in the failure to warn others once a prediction had been made (Perlin, 1992). A corollary of this, of course, is that warnings may be given which do not result in harm and cause a great deal of, what transpires to be, unnecessary stress. However, the Court felt that this was justifiable in terms of the lives it may save.

The second argument of their brief, referring to the confidentiality of the therapist-patient relationship as being paramount, was also rejected by the Supreme Court on the grounds that the danger to others overrides the therapist-patient relationships. They took into con- sideration both the patient’s best interests and the safety of others. Following extensive deliberations they concluded: “the public policy favouring protection of the confidential character of patient-psychotherapist com- munications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins” (Tarasoff, 1976; p. 347).

Since this hearing there has been a healthy debate concerning a number of issues which result from this ruling. These will now be summarised in the remainder of this paper and their consequences for practice will be outlined.

3. Tarasoff and social control

The role of psychiatry and its agents, the mental health professionals, in relation to social control is well rehearsed. The thrust of the analysis of therapy and social control now focuses upon the nature of the values that underpin psychiatry, the law, and normative society.

Within the debate there are central tenets which often appear to be in conflict with each other. A founding principle of democratic law is the respect for human autonomy. This has been elucidated by Quathrocchi and Schopp (1993): “as a moral right, autonomy refers to one’s sovereignty over a sphere of personal decisions

generally regarding one’s body, work, family. privacy, and property”. Further to this it is argued that to exercise the right to autonomy the personal requisites include consciousness, understanding and reasoning. The extent to which each person possesses these attributes, however, will govern their capacity for autonomous action. The principle of autonomy, which lies at the heart of our society. stands alongside a second founding value, namely, the well-being of the citizenry. The law exists to enhance this principle and uses the notion of punishment to promote it. Autonomy and social well-being. therefore, can clearly be in opposition if the autonomous drive of one individual is to cause harm to another member of society. In the scenario of one person being a definite danger to another it is socially legitimate to control the perpetrator in order to protect the intended victim. How- ever. things are not as clear cut as this in reality.

Firstly, the criminal justice system generally responds with sanctions once prescribed conduct has been enacted and is justifiable on the grounds that it punishes people: “only for what they do and not for what they are” (Packer. 1968; p. 74). However. in the case of Tarasoff the law requires an intervention hef)src~ the act is com- mitted and thus shifts the focus somewhat. In terms ot civil commitment law in the United States and Mental Health legislation in Britain there is a duty for mental health professions to make predictions about the dangerousness of patients and to act in protecting perceived victims. However, the action required further complicates the Tarasoff liability and brings us to the second thorny issue.

Secondly. the sharp boundaries within the criminal law. in relation to the application of a sanction after the law has been transgressed, are “loosened” by allowing mental health systems to pre-judge the possibilities of a law being broken. And, not only allowing for an action being taken to prevent it but also insisting that a professional is legally and morally bound to do so. However. the difficulty is compounded in Tarasoff by the “duty to protect” which remains unclear at what level the perpetrators’ autonomy is safeguarded whilst protecting the victim.

Put another way. should the perpetrator be left to act autonomously, yet dangerously. whilst protecting the potential victim. and await for an attempted assault before evoking the law? Or. should the perpetrators’ autonomy be curtailed and him or her detained on the basis of a possibility that he or she n?u~ break the law and thus protect the potential victim‘?

This question of autonomy and well-being of the citizenry in relation to psychiatry and social control is prone to a degree of further “slippage” by legal adjudication such as Tarasoff. This “slippage” pushes mental health professionals further into the role of agents of social control under “the single unifying theme: that the therd- peutic approach knows no bounds” (Wexler, 1981; p. 14).

4. Prediction of violence

Prediction of violence lies at the heart of forensic psychiatry but this may not necessarily be appropriate. In the Tarasoff case the court stated that it was unrealistic to expect mental health professionals in their prediction of violence to provide “a perfect performance” (Tarasoff, 1976; p. 345). They focused on the need for therapists to be non-negligent. By this, they argued that once a prediction had been made, as in the case of Tarasoff, action is required. Although the campus police had been informed, the intended victim or nearest relatives had not.

The lay perception of the mentally ill is based on the “widespread belief that mentally disordered persons as a group are dangerous” (Meyer, Landis and Hays, 1988: p. 138). From this lay perception there is a commonly held belief that mental health professionals have an expertise in predicting this dangerousness, contrary to the empirical studies and even the more contemporary work of Hodgins (1994). Although in the Tarasoff case the court understood only too well that: “psychiatric predictions of violence are inherently unreliable” (Tar- asoff, 1976: p. 354) implicitly in the decision and the subsequent adjudication there is a belief in the judiciary “that certain kinds of dangerousness are predictable” (Perlin. 1992: p. 39). Without doubt the Tarasoff court implied that there was a body of knowledge that mental health professionals dealt with in their prediction of dangerousness and added that given any reasonable stan- dard they should be expected to know this information. However, it is the predictive nature of this work that causes the major problems and should be tempered with a pinch of realism.

In a study of released criminally insane patients. at or about the time of the Tarasoff case, Steadman and Coco- zza (1974) concluded: “neither psychiatrists nor behavioural scientists can select persons who will become dangerous without designating many times more who will not be dangerous” (p. 188). Despite the ever increasing number of studies on the prediction rates of mental health professionals they: ‘I. have continued to find significant rates of over-prediction and modest overall accuracy” (Kaufman, 199 1: p. 3 11). Some have argued that an accuracy rate of40% is the “forensic sound barrier” (Menzies. Webster and Sere:jak. 1985) but go on to argue that this is difficult to achieve. If such poor prediction rates are the norm. then. it is little wonder that: “it appears difficult to determine if clinical standards for the prediction of violent behaviour exists in any mental health context” (Wettstein. 1984: p. 31 I).

There is an argument, probably emanating from such poor prediction rates, that mental health professionals should not, in fact, attempt to predict any form of behaviour. let alone violent behaviour. The suggestion being that the work of therapists deals with antecedents which,

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through interpretation, leads to explanatory causes. However, without this predictive element there is a tend- ency for the medicalisation of criminality to be somewhat diluted due to the absence of the prognostic element within the medical model. Therefore, despite the attrac- tion of extricating mental health professionals from this difficulty it is unlikely to be adopted and remains merely an interesting academic point.

The predictive difficulty is enhanced because many researchers in this arena view violence/dangerousness as all or none, or more accurately, present or absent within individuals. It should be remembered that violence, and thus dangerousness, is present in everyone and it is more a question of degree in relation to the contextual triggers that release it. Rather than view violence and dangerousness as forms of dichotomies between their presence and absence or as binary oppositions between violence/non-violence or dangerous/non-dangerous they should be seen as polarised scales or based on a con- tinuum that have a series of gradations. However, as Perlin (1992) warns: “recent literature urging a “context- bound” or “interactionist” perspective on dangerousness has simply not been considered by legal fact finders weighing these cases” (p. 41).

Finally in terms of prediction. the time frame in which it is set is equally as important in terms of the validity of the prediction. Whilst in Britain the non-reoffence rate within five years is considered an arbitrary cut off point in predictions, the Menninger Clinic in the U.S.A. con- siders: “such predictions (of assault) remains meaningful for only 24 weeks” (Kaufman. 1991: p. 312). It would certainly seem that the prediction of violence is similar to the prediction of the weather, extremely poor in the long term but relatively good the more imminent it becomes.

5. Duty to third parties

The first ruling (1974) in the Tarasoff case involved the duty of the therapist to warn the potential victim of a threat posed by his/her patient. However, this caused considerable alarm for a number of reasons. Firstly, as the predictions, as have been noted, are notoriously unreliable this means that some people (the majority) were being told that they were in danger when, in fact, they were not. Although this caused great distress for some it was felt by the court that the safety of the few outweighed the distress of the many. Secondly, merely warning the intended victim that they were in danger seemed insufficient in terms of the mental health professionals’ duty. It was not enough to solely inform the intended victim, and/or police. that a person was under threat and then doing little else about it. Therefore, in a later ruling (1976) the duty to warn was extended to the duty to protect.

However, the duty to protect also has implications for practice. If there is now a legal liability of the therapist to protect third party victims does this not lead to increased incarceration of potentially violent offenders? This duty to protect now overrides the therapeutic endeavour which is subjugated to a secondary importance. This, it has been argued, could lead to a premature withdrawal of patients from therapy (Perlin, 1992). Furthermore, this duty to protect can also be seen as a breach of confidentiality.

Confidentiality, for some, lies at the heart of the therapeutic relationship and its cornerstone is trust, As Ever- stine et al. (1980) observed: “the hallmark of psychotherapy is the establishment of a relationship of trust between client and therapist, and this relationship must be carefully protected through the course of the therapeutic experience” (p. 836). The duty to protect third parties transcends this confidentiality which could pos- sibly have far reaching consequences. These are summarised as:

1. Withdrawal of the patient from therapy. 2. Suppression of information.

This breach of confidentiality, which is now a legal duty, has the corollary of therapists being subpoenaed to give testimony in both defence and prosecution capacit- ies. Given this scenario it is not surprising that some therapists have been under severe threat by patients that they have been engaged in therapy with (Leong. Spencer and Silva, 1992). If disclosure is made whilst a patient is in therapy and the therapist is subsequently compelled to reveal all in court this could, clearly, put the therapist at risk of being in contempt of court by remaining silent. Another factor in the confidentiality/trust issue is the right of privilege for patients to control the release of material from their therapeutic sessions or psychiatric records, This brings us full circle in the argument with Justice Tobriner’s oft quoted comment: “the protective privilege ends where the public peril begins” (Tarasoff, 1976: p, 346). Although the confidentiality issue is not here resolved it is given a somewhat earlier practical flavour by Karl Menninger (1952: p. 40): “If a patient tells a doctor in confidence that he has brought a time bomb into the hospital and hidden it under the bed of one of the other patients. it is a strange doctor indeed who would feel that this professional confidence could not be violated” (cited in Kaufman, 1991: p. 3 16).

As was said, although the issue of confidentiality is unresolved there is another corollary for the mental health professional to the duty to protect and that is in terms of the liability (see below). The therapist is bound in law to rescue the third parties from danger and should they fail to do this they are liable to be sued for negligence. However, this negligence is not negligence in terms of their actual therapeutic endeavour but negligence in relation to a third party who they may never have met.

In fact. despite the interesting scenario in which the psychiatric therapeutic care may, indeed, have been excellent the therapist could still face a charge of negligence. This does have precedents however; the case of a medical doctor prescribing a drug to a bus driver without warning him of side effects of drowsiness could have dire consequences for third parties with subsequent law suits from them, or their survivors (Carstensen, 1994: p. 7). This, of course, is not a break in confidentiality but is centred on both the patient’s well-being and that of third parties.

6. Tarasoff restrictions and broadening

There has been a wide range of responses from legal systems, both in America and internationally. stemming from the Tarasoff case. Some states in America have made rulings which remain close to the Tarasoff decision whilst others have restricted its “applicability within so- called anti-Tarasoff statutes” (Kaufman, 199 1: p. 3 17). Still others have broadened the doctrine to include an identifiable potential victim who may not have been directly threatened.

The anti-Tarasoff impetus is an attempt to marry the basic tenets of the Tarasoff decision with a reduced liability for the therapists. The principles they tend to hold may involve the idea that: “in some situations. the person most likely to foresee an injury should bear the risk of its occurrence and the burden of taking steps to prevent it” (Merton. 1982: p. 293). However, it is the liability aspect. and its consequences. that they tend to set limits upon. For example. some rule that both potential victim and the police must be informed whilst others state either will suffice.

Legal liability exists for three main reasons. Firstly, for compensation where a loss is incurred which must be reimbursed by those held responsible for such loss. In the case of Tarasoff liability. compensation is payable only where there is an identifiable victim whose therapist:

1. Knows or ought to have known of the particular risk. 2. The victim’s identity was clearly established. 3. The therapist failed to take appropriate action (Car-

stensen. 1994: p. 17).

The general feeling of the compensatory mechanism in Tarasoff is that it lails to cover the complexities of individual cases and most compensation is absorbed in legal costs (Carstenson. 1994).

Secondly. legal liability exists to act as a deterrent. However. the mechanisms by which deterrence is fulfilled needs to be carefully weighed. With contemporary moves towards insuring against liability the deterrent factor is diminished. Although courts tend to believe that they affect practice the complexities of the deterrent issue would suggest that human nature being what it is usually

finds another loophole. The vagaries of this human nature of professionals was highlighted by Carstensen (1994) in response to the statute limitation of a victim’s claim to $150,000 when he reported: “One commentator hdS

speculated that this “low’ price for the harms of released patients would induce excessive release of mental patients” (p. 20).

Thirdly, there is the punitive aspect or corrective justice to the notion of legal liability in which it is simply a question of punishing a bad act. Although the notion of punishment tends to bristle with moral concerns and tends to be subsumed within more philosophic discourse, nevertheless it appears central to many court decisions. As Carstensen (1994) observed: “a simplistic desire for corrective justice. an urge to punish what seems blatant misconduct by therapists who fail to warn specific victims or release patients when that seems clearly unreasonable, does explain much of the law as it has emerged” (p. 24).

7. Impact on carers

The question now is what impact will Tarasoffliability have for forensic psychiatric health professionals whatever capacity they are operating in. The easier answer is that the impact-whatever it is--will only increase in complexity. depth and scope over the coming years. In the forensic field patients offer information regarding threats to third parties relatively often. The difficulty is sifting the real threats from the vacuous inane ones. In day-to-day contact. within an extended professional relationship. such as exists in nursing, discourse pertaining to anger, bitterness, retribution etc. in relation to family, partners or agents of the system are often the conversational focus for many patients. This can be extended into hatred of police, psychiatrists and nurses. and judges and lawyers who are blamed, in one way or another, for the patient’s continued compulsory deten- tion. There may also be whole organisations such as “the government” or “wornens’ movements” who receive vitriolic threats.

Patients who issue threats against others are equally as varied. They may be the paranoid ramblings of an obvi- ous systematised delusion or they may be the logical arguments of someone operating in the grey area between unreasonable thinking and rational thought. Some forensic patients are personality disordered and cannot con- tain their anger and reticence towards a perceived target whilst others only hint on rare occasions at the depth of feeling they may have towards someone. With other patients it is cultural bravado to emit such threats and. of course. there are those who remain silent. In any event the role of the mental health professional in these scen- arios is to attempt to sift the genuine threat from the false. This is not always easy, as it is well understood that some verbally aggressive and apparently hostile patients

114 T. Mason/hi. J. Nurs. Sruci. 35 (1998~ 109-114

do not convert this anger “into action, whilst some weak, quiet patients” may cause severe harm.

No matter the extent of application of the Tarasoff liability in any given society its principles penetrate practice. Perlin (1992) pointed out that the difficulty in the forensic arena in relation to Tarasoff liability is in dis- tinguishing between the evaluation of the threat merely as an expression of anger and the imminent danger to a victim. Although it is readily accepted that Tarasoff in forensic cases is only now receiving due attention in schol- arly examination it is highly likely to feature much larger in British courts of law in the future.

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tarasoff liability: its impact for working with patients who threaten others

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