From tarasoff to hopper: The evolution of the therapist's duty to protect third parties

The duty of therapists to protect third parties has gained national attention following the analyses of the California Supreme Court in Tarasoff v. Regents of the University of California in 1974 and in 1976. The assassination attempt by John Hinckley, Jr., has spawned yet another “duty to protect” case (Hopper v. Brady). Utilizing the issues involved in Hopper, this paper discusses the psychotherapists' duty to protect from harm the patients' potential victims. Following an analysis of Hopper, Tarasoff is extensively reviewed. The evolution of Tarasoff within California and other jurisdictions is traced. Finally, an appraisal of the current status of the therapists' duty to protect as applied to Hopper and future cases is presented.     

Clinical training and the duty to protect.

Given that the duty to protect is now a well established clinical and legal expectation, training in professional psychology should assist students in developing conceptual models for violence risk assessment and management. This report presents a training model incorporating recent advancements in risk assessment (such as the assessment of psychopathy), the need for basic legal understanding, and knowledge of specific risk management strategies. Additionally, academic and internship training programs in Michigan were surveyed by telephone about current training patterns. Preliminary results indicated program strengths in general awareness and training in risk factors. However, the data also suggested a need to formalize a faculty role in risk education, improve the training of students in relevant legal information, and establish coherent conceptual models of dealing with potential patient violence. It is argued that improving training of future professionals in this way will improve clinical practice, reduce legal liability, and improve public safety.     

The so-called duty to warn: The psychotherapeutic duty to protect third parties from patients' violent acts

This article discusses the much-misunderstood Tarasoff decision that requires psychotherapists to protect third parties from patients' violent acts. Through a normative approach, the paper analyzes four important issues: what to do when potential victims are unknown; what to do about the fact that the patients' potential for violence may be incorrectly perceived; the value of warning potential victims; and, the problem of discharging potentially violent patients from the hospital. The author proposes that the courts adopt a more flexible substantial departure test in most cases that involve psychiatric negligence.     

Psychologists' perceptions of their duty to protect uninformed sex partners of HIV-positive clients.

The purpose of the present study was to determine whether mental health professionals would breach the confidentiality of HIV-infected patients with uninformed sex partners, and how any such disclosure would occur. Subjects read one of eight vignettes that depicted a patient who refused to disclose his viral status. Results revealed a split of opinion about breaching confidentiality and about the preferred mode for doing so. Neither diagnosis nor mode of viral transmission significantly influenced breaching decisions. Subjects demonstrated a high level of AIDS risk knowledge but only a moderate level of legal/ethical knowledge. Implications of these findings are discussed.     

The prediction of violent behavior and the duty to protect third parties

A considerable theoretical, empirical, and clinical literature has accumulated on the prediction of dangerous and violent behavior. Despite the pleas of mental health professionals that the prediction of violent behavior is not clinically feasible, courts upholding a therapist's duty to protect third parties have created a legal duty to do so. The first generation of research studies of the clinical prediction of violent behavior focused on long-term predictions in offender populations, of little direct relevance to the setting of outpatient therapy with nonoffenders. More recent clinical research has centered on predictions of imminent violence in noncriminal populations, particularly in the process of involuntary hospitalization, but this reveals relatively low levels of predictive accuracy. Methodologic and ethical factors also limit the generalizability of such work. Given the likelihood that significant numbers of false positive predictions will result, especially in the low base rate population of outpatient treatment, it is suggested that therapists attempt to minimize the antitherapeutic influence of any breach of confidentiality.     

The normative and conceptual foundations of a clinical duty to protect

The continuing controversy surrounding the Tarasoff inspired duty to protect as developed by the courts and legislatures has not adequately weighed the jurisprudential foundations of such an obligation. The authors argue that the duty's misguided thrust of social control grounded in character and status seriously violates broad principles of political morality underlying the law of social control. They conceptualize an alternative--a clinical duty to protect--that coheres with these underlying values and the limits of professional abilities. They contend that any extra-clinical intervention on the part of the psychotherapist entails a role transformation requiring independent justification.     

Differential vocalization in budgerigars: towards an experimental analysis of naming.

In Experiment 1, 3 budgerigars (Melopsittacus undulatus) were trained with food reinforcement to make low- or high-frequency calls in response to different color stimuli, C1 and C2 (a color-naming task), using a gradual response-differentiation procedure and an automatic call-recognition system. Thus, a call within a certain frequency band was reinforced in the presence of C1 ("C1 call"), and a call within a different band was reinforced in the presence of C2 ("C2 call"). In Experiment 2, all 3 budgerigars were trained in a form-to-color matching-to-sample task, alternating trial by trial with either the color-naming task (2 birds) or an identity color matching-to-sample task (1 bird). Sample stimuli for the new matching-to-sample task were forms (F1 or F2) and comparisons were the same two colors (C1 and C2). Given Sample F1 or F2, birds had to make a call to produce Comparison Pair C1 and C2. With F1 as the sample, a peck on C1 was reinforced; with F2 as the sample, a peck on C2 was reinforced. Although no particular call was specified in the presence of F1 and F2, 2 birds made the C1 call in the presence of F1 and the C2 call in the presence of F2. In Experiment 3, the bird that failed to match form and color calls in Experiment 2 and another bird were first trained in a color-to-form matching-to-sample task: C1 to F3 and C2 to F4. In this task, to produce the comparison pair of forms, a high call (or low for the other bird) was required in the presence of C1, and a low call (or high) was required in the presence of C2. Both birds were then trained with an identity matching-to-sample task in which sample and comparison stimuli were the same two forms, F3 and F4. Trials on the identity task alternated with the color-to-form trials. Although no particular call was required in the presence of Samples F3 and F4, both birds came to make the C1 call in the presence of F3 and the C2 call in the presence of F4. Our technique promises to be useful for the study of emergent vocal relations in budgerigars and other animals.     

Genetic risk: the new frontier for the duty to warn.

Mental health professionals usually think of the "duty to warn" in the context of mental illness. However, two state appellate courts have endorsed a duty to warn when children of a patient may be at risk genetically for acquiring the disease of their parents. In these cases, the courts held that a physician's legal obligations extended beyond his or her patient to the patient's children. This article discusses these cases, as well as issues regarding implementation of such a duty and the implications for the physician-patient relationship in a health care environment that will be dominated increasingly by genetics issues. The article concludes that it is premature to apply a duty to warn to the treatment of mental illness and to concerns regarding future criminal behavior.     

Unlocking the beauty of the imperfect duty to aid: Sen's idea of the duty of assistance

This paper examines the links between acting upon a duty to assist, responsibility for these actions, and how such actions link with incremental moral duties that can amass as a consequence of such action. More specifically, this paper is concerned with practices of international aid and assistance, whereby public and privately funded donations enable the actions of parties outside of the territorial and jurisdictional boundaries of a community and state to directly influence the functioning of that community, and the incremental moral duties to which such action can give rise. Using a Senian account of the basis of moral duty, it explains how agents are responsible for the outcomes of their acts of assistance, even when mediated through international institutional actors, and how such acts can give rise to accumulative duties and obligations that are not bound or constrained by territorial boundaries or pre-existing special obligations.     

Assessing violence risk in Tarasoff situations: a fact-based model of inquiry.

Although significant advances in risk assessment research and practice have been made in recent years, there has not been any analysis in the professional literature regarding how and whether the emerging practice recommendations apply in Tarasoff-type situations. We suggest that, when faced with a Tarasoff-type situation, the appraisal of risk should be guided by a method that is primarily fact-based and deductive, rather than by the more inductive risk assessment approach for general violence recidivism, which is guided primarily by base rates and historical risk factors. We review the principles underlying a fact-based, or threat assessment, approach and outline six areas of inquiry that can guide the appraisal of risk: A-attitudes that support or facilitate violence, C-capacity, T-thresholds crossed, I-intent, O-other's reactions, and N-noncompliance with risk reduction interventions.     

Potential erosion of psychotherapist-patient privilege beyond California: dangers of "criminalizing" Tarasoff.

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.     

Reactive Kripke models and contrary to duty obligations. Part A: Semantics

This paper introduces a new method for modelling contrary to duty obligations (CTD). Given a contrary to duty obligation structure CTDs presented in English, there is the problem of offering a logical system in which it can be coherently formalised. There are several formal systems in the literature attempting to do so, such as SDL (Standard Deontic Logic), various dyadic operators and other kinds of formalised normative systems. The difficulties encountered by such systems is that they end up with counter intuitive results for some CTD linguistic structures, referred to as paradoxes (for the offered formalising logic). We use reactive Kripke models as the semantics and a reactive extension of SDL, with one additional reactive modality as syntax for such CTD. Reactive Kripke models change their accessibility relation as we move from node to node during the semantic evaluation process. This change is made to correspond to the change implicit in the intuitive meaning of the contrary to duty obligations. The reactive Kripke semantics is stronger semantics than ordinary Kripke models and therefore allows for more fine tuning of our modelling process.     

Aggressive acts and assaults in intimate relationships: towards an understanding of the literature.

Far more people in relationships are subjected to violent acts than those who receive injuries. The degree of damage sustained may not reflect the perpetrator's intent to deliberately harm a partner. Data documenting aggressive acts determines the population at risk and their prevention and early treatment requirements; whereas data focusing on harm and injury helps determine emergency medical and refuge services. Data from national crime surveys, police records, or clinical populations should not be generalized to the population at large. Even if men perpetrate the majority of serious partner attacks, addressing the issue of female violence will significantly reduce the overall level of domestic violence. Judicial, medical, and social services should take note that while male violence may be more problematic, violence is a relationship issue, not a male issue.     

Patient's choice to suicide v. treater's duty to prevent suicide: Some changing clinical dilemmas

The evolution of civil commitment procedures is seen as reflecting changing social and ethical values regarding individual liberty versus protection of self and others. The dilemma of dealing with the modern suicidal patient places the psychiatrist at the interface of conflicting societal expectations. The legal aspects of civil commitment are seen as not necessarily compatible with the best clinical course for the suicidal patient. The relationship of the process of the civil commitment to the process of treatment is briefly explored.