Dangerous Patients and the Tarasoff Doctrine

In April of this year, previously sealed court records were opened in connection with the July 20, 2012, shooting attack at a Colorado movie theater. There, accused killer James Holmes allegedly caused 12 deaths and left more than 70 victims injured. The unsealed records confirmed previously unsubstantiated reports that circulated soon after the shootings: Holmes had been under treatment by a psychiatrist at the University of Colorado. In fact, Holmes' psychiatrist, Dr. Lynne Fenton, had told campus police one month before the attack that her patient had homicidal thoughts, that he had threatened and intimidated her, and that, in Dr. Fenton's professional opinion, Holmes constituted a danger to the public at large.'

The report on Holmes that Dr. Fenton gave to campus police fulfilled a legal requirement to notify local officials of dangerous patients, and was consistent with the mandate of the California Supreme Court's seminal decision, rendered 37 years before, in Tarasoff v. Regents of the University of California, 17 Cal.3d 425 (1976) (en banc).

Like the State of Colorado, numerous state legislatures have taken active roles in codification of the Tarasoff Doctrine in the years since it was first announced. Psychiatrists and other mental health practitioners must know the reporting laws in their own jurisdictions, and take the required steps under those laws, if they want to avoid liability when a patient follows through on a threat to harm someone else.

Tarasoff Sets the Standard

Tarasoff is widely and justifiably considered the leading case holding that the relationship between psychiatrist and patient may impose affirmative duties upon the treating mental health professional for the benefit and protection of others. In that case, Tatiana Tarasoff was murdered by a young man who two months before had informed his psychiatrist that he intended to kill Tatiana. As in the Colorado incident, the treating psychologist reported the incident to campus police, who briefly detained but then released the patient, as he appeared rational and promised to stay away from Tatiana. The psychologist's superior then directed that no additional measures taken. Thus, the patient was not' confined or otherwise restrained, and no one warned either the victim or her parents.'

On the basis of these facts, the California Supreme Court held that the defendant therapists could not escape liability merely because Tatiana was not their patient. That court stated:

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.

Four years later, in Thompson v. County of Alameda, 27 Cal.3d 741 (1980) (en banc), the California Supreme Court distinguished its holding in Tarasoff in a case arising out of the murder committed by a juvenile offender who had recently been released from confinement by the defendant County of Alameda. The evidence of record indicated that the defendant knew that the juvenile offender possessed “latent, extremely dangerous and violent propensities regarding young children and that sexual assaults upon young children, and violence connected therewith, were a likely result of releasing him into the community.”

The juvenile did not, however, indicate which young child was his intended victim. The defendant released the juvenile on temporary leave into his mother's custody, but did not warn local officials or the parents of young children in the area of the juvenile's dangerous propensities. Less than one day following his release, the juvenile offender killed the plaintiff's son.

Distinguishing Tarasoff, the California Supreme Court held, as a matter of law, that the defendant did not owe a duty to warn the neighborhood parents, emphasizing that the victim in Tarasoff was known and specifically identifiable to the treating therapist. The court held that the duty to warn “depends upon and arises from the existence of a prior threat to a specific, identifiable victim.” On that basis, the court concluded that public entities and their employees “have no affirmative duty to warn of the release of an inmate with a violent history who has made nonspecific threats of harm to nonspecific victims.”

Laws Nationwide

In the Aurora, CO, case, it appears that threats issued by James Holmes were directed to his therapist only, and did not reveal a specific threat in any manner consistent with the tragic events of July 20, 2012. Dr. Fenton reported to campus police that she began to receive threatening text messages from Holmes after he stopped seeing her for counseling. Her report was characterized as fulfillment of her “legal duty.”

In the years between the California Supreme Court's Tarasoff decision and 2004, no less than 23 states enacted so-called “Tarasoff Statutes” applicable to psychiatrists. “Court Responses to Tarasoff Statutes,” J. Am. Acad. Psychiatry Law 32:263-73 (Kachigian and Felthous, 2004). More have done so since then. These statutes often, but not always, can be classified as falling into three broad categories, which attempt to define the duty imposed upon mental health professionals when they are confronted by threats made by their patients. One group of such laws contain terminology consistent with mandatory imposition of a clearly defined duty, e.g., ” ' a mental health professional has a duty ' ” to report under certain circumstances. Michigan (Mich. Comp. Laws ' 330.1946) and Louisiana (La. Rev. Stat. Ann. ' 2800.2) are examples of these.

A second category of reporting statute, of record in a dozen or more states (including Colorado), employs language that, while appearing to create a duty, does so in a less direct manner. As stated by Kachigian and Felthous, such laws are phrased in a “conditional manner,” and use language like, “There can be no cause of action and no liability ' unless ' ” A third type of law adopts much more permissive language, along the lines of, “ The psychiatrist may” disclose ' Included in this groups are Texas (Tex. [Health and Safety] Code Ann. ' 611.004) and Mississippi (see Miss. Code Ann. ' 42-21-97). In this third type of jurisdiction, there is no affirmative duty to warn, only permission for the mental health professional to disclose a patient's confidential communications if he or she reasonably fears that the patient may harm another (or sometimes himself).

A fourth grouping of states (California, Illinois, Ohio and Washington) has adopted unique legislation that cannot easily be assigned to any of the' preceding categories. There are also a handful of states that impose no duty to disclose, favoring the value of patient confidentiality over the possible safety concerns of third parties. Maine and North Dakota are in this group.

Conclusion

The availability of handguns and similar weapons to mentally challenged individuals has been widely debated in the media, state legislatures and Congress over the past several years, and in many instances the precipitating events have involved individuals who had received, or were receiving, mental health care at the time they committed acts of violence upon many innocent victims. Jared Lee Loughner, accused of killing six people and wounding 13 others, including Rep. Gabrielle Giffords, was involved with both security personnel and mental health professionals at Pima Community College prior to the assault of Jan. 8, 2011.

Similarly, in April 2007, Seung Hui Cho shot and killed 32 students and faculty members before taking his own life at Virginia Tech. Several months before the attack, Cho had spoken with a counselor and requested an appointment with a specific psychologist, but failed to keep the appointment. He subsequently called the counseling center but never appeared for a counseling session, although he did send a text message to his college suitemate, stating “I might as well kill myself.” Cho eventually was the subject of commitment proceedings in which a licensed social worker deemed him to be “mentally ill [and] an imminent danger to self or others,” but he was released with instructions to pursue outpatient treatment.

The justices who announced the decision in Tarasoff could not have foreseen the wave of legislation and case law that would follow in the nearly four decades since their ruling was handed down. Now, mental health professionals, on college campuses and elsewhere, must comply with obligations arising under state statutory law as well as the common-law duty articulated in Tarasoff and subsequently addressed by dozens of other state and federal appellate courts. This can be a more difficult thing to do than it might first appear.

Some mental health care providers who reported fears about their patients have found themselves the targets of defamation lawsuits when those patients did not carry out their threats, yet lost their jobs or suffered other adverse consequences due to their doctors' warnings. Psychologists who did not give warnings to potential victims have been blamed for the consequences of their patients' actions. And others, like Dr. Fenton, who correctly diagnosed the dangerous propensities in her patient and reported them in accordance with state law, have discovered that their actions are not always enough to prevent the type of tragedy that occurred in that Aurora movie theater.

These issues will continue to challenge practicing psychiatrists and psychologists, and also our society at large. Medical care providers and their counsel do well to recall the Tarasoff court's rationale and ultimate ruling, as well as the laws of their own jurisdictions, when addressing the issues raised by apparently dangerous patients.

Michael D. Brophy, a member of this newsletter's Board of Editors, is a partner in Goldberg Segalla, practicing out of the firm's Philadelphia office.

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In April of this year, previously sealed court records were opened in connection with the July 20, 2012, shooting attack at a Colorado movie theater. There, accused killer James Holmes allegedly caused 12 deaths and left more than 70 victims injured. The unsealed records confirmed previously unsubstantiated reports that circulated soon after the shootings: Holmes had been under treatment by a psychiatrist at the University of Colorado. In fact, Holmes' psychiatrist, Dr. Lynne Fenton, had told campus police one month before the attack that her patient had homicidal thoughts, that he had threatened and intimidated her, and that, in Dr. Fenton's professional opinion, Holmes constituted a danger to the public at large.'

The report on Holmes that Dr. Fenton gave to campus police fulfilled a legal requirement to notify local officials of dangerous patients, and was consistent with the mandate of the California Supreme Court's seminal decision, rendered 37 years before, in Tarasoff v. Regents of the University of California , 17 Cal.3d 425 (1976) (en banc).

Like the State of Colorado, numerous state legislatures have taken active roles in codification of the Tarasoff Doctrine in the years since it was first announced. Psychiatrists and other mental health practitioners must know the reporting laws in their own jurisdictions, and take the required steps under those laws, if they want to avoid liability when a patient follows through on a threat to harm someone else.

Tarasoff Sets the Standard

Tarasoff is widely and justifiably considered the leading case holding that the relationship between psychiatrist and patient may impose affirmative duties upon the treating mental health professional for the benefit and protection of others. In that case, Tatiana Tarasoff was murdered by a young man who two months before had informed his psychiatrist that he intended to kill Tatiana. As in the Colorado incident, the treating psychologist reported the incident to campus police, who briefly detained but then released the patient, as he appeared rational and promised to stay away from Tatiana. The psychologist's superior then directed that no additional measures taken. Thus, the patient was not' confined or otherwise restrained, and no one warned either the victim or her parents.'

On the basis of these facts, the California Supreme Court held that the defendant therapists could not escape liability merely because Tatiana was not their patient. That court stated:

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.

Four years later, in Thompson v. County of Alameda , 27 Cal.3d 741 (1980) (en banc), the California Supreme Court distinguished its holding in Tarasoff in a case arising out of the murder committed by a juvenile offender who had recently been released from confinement by the defendant County of Alameda. The evidence of record indicated that the defendant knew that the juvenile offender possessed “latent, extremely dangerous and violent propensities regarding young children and that sexual assaults upon young children, and violence connected therewith, were a likely result of releasing him into the community.”

The juvenile did not, however, indicate which young child was his intended victim. The defendant released the juvenile on temporary leave into his mother's custody, but did not warn local officials or the parents of young children in the area of the juvenile's dangerous propensities. Less than one day following his release, the juvenile offender killed the plaintiff's son.

Distinguishing Tarasoff, the California Supreme Court held, as a matter of law, that the defendant did not owe a duty to warn the neighborhood parents, emphasizing that the victim in Tarasoff was known and specifically identifiable to the treating therapist. The court held that the duty to warn “depends upon and arises from the existence of a prior threat to a specific, identifiable victim.” On that basis, the court concluded that public entities and their employees “have no affirmative duty to warn of the release of an inmate with a violent history who has made nonspecific threats of harm to nonspecific victims.”

Laws Nationwide

In the Aurora, CO, case, it appears that threats issued by James Holmes were directed to his therapist only, and did not reveal a specific threat in any manner consistent with the tragic events of July 20, 2012. Dr. Fenton reported to campus police that she began to receive threatening text messages from Holmes after he stopped seeing her for counseling. Her report was characterized as fulfillment of her “legal duty.”

In the years between the California Supreme Court's Tarasoff decision and 2004, no less than 23 states enacted so-called “Tarasoff Statutes” applicable to psychiatrists. “Court Responses to Tarasoff Statutes,” J. Am. Acad. Psychiatry Law 32:263-73 (Kachigian and Felthous, 2004). More have done so since then. These statutes often, but not always, can be classified as falling into three broad categories, which attempt to define the duty imposed upon mental health professionals when they are confronted by threats made by their patients. One group of such laws contain terminology consistent with mandatory imposition of a clearly defined duty, e.g., ” ' a mental health professional has a duty ' ” to report under certain circumstances. Michigan (Mich. Comp. Laws ' 330.1946) and Louisiana (La. Rev. Stat. Ann. ' 2800.2) are examples of these.

A second category of reporting statute, of record in a dozen or more states (including Colorado), employs language that, while appearing to create a duty, does so in a less direct manner. As stated by Kachigian and Felthous, such laws are phrased in a “conditional manner,” and use language like, “There can be no cause of action and no liability ' unless ' ” A third type of law adopts much more permissive language, along the lines of, “ The psychiatrist may” disclose ' Included in this groups are Texas (Tex. [Health and Safety] Code Ann. ' 611.004) and Mississippi (see Miss. Code Ann. ' 42-21-97). In this third type of jurisdiction, there is no affirmative duty to warn, only permission for the mental health professional to disclose a patient's confidential communications if he or she reasonably fears that the patient may harm another (or sometimes himself).

A fourth grouping of states (California, Illinois, Ohio and Washington) has adopted unique legislation that cannot easily be assigned to any of the' preceding categories. There are also a handful of states that impose no duty to disclose, favoring the value of patient confidentiality over the possible safety concerns of third parties. Maine and North Dakota are in this group.

Conclusion

The availability of handguns and similar weapons to mentally challenged individuals has been widely debated in the media, state legislatures and Congress over the past several years, and in many instances the precipitating events have involved individuals who had received, or were receiving, mental health care at the time they committed acts of violence upon many innocent victims. Jared Lee Loughner, accused of killing six people and wounding 13 others, including Rep. Gabrielle Giffords, was involved with both security personnel and mental health professionals at Pima Community College prior to the assault of Jan. 8, 2011.

Similarly, in April 2007, Seung Hui Cho shot and killed 32 students and faculty members before taking his own life at Virginia Tech. Several months before the attack, Cho had spoken with a counselor and requested an appointment with a specific psychologist, but failed to keep the appointment. He subsequently called the counseling center but never appeared for a counseling session, although he did send a text message to his college suitemate, stating “I might as well kill myself.” Cho eventually was the subject of commitment proceedings in which a licensed social worker deemed him to be “mentally ill [and] an imminent danger to self or others,” but he was released with instructions to pursue outpatient treatment.

The justices who announced the decision in Tarasoff could not have foreseen the wave of legislation and case law that would follow in the nearly four decades since their ruling was handed down. Now, mental health professionals, on college campuses and elsewhere, must comply with obligations arising under state statutory law as well as the common-law duty articulated in Tarasoff and subsequently addressed by dozens of other state and federal appellate courts. This can be a more difficult thing to do than it might first appear.

Some mental health care providers who reported fears about their patients have found themselves the targets of defamation lawsuits when those patients did not carry out their threats, yet lost their jobs or suffered other adverse consequences due to their doctors' warnings. Psychologists who did not give warnings to potential victims have been blamed for the consequences of their patients' actions. And others, like Dr. Fenton, who correctly diagnosed the dangerous propensities in her patient and reported them in accordance with state law, have discovered that their actions are not always enough to prevent the type of tragedy that occurred in that Aurora movie theater.

These issues will continue to challenge practicing psychiatrists and psychologists, and also our society at large. Medical care providers and their counsel do well to recall the Tarasoff court's rationale and ultimate ruling, as well as the laws of their own jurisdictions, when addressing the issues raised by apparently dangerous patients.

Michael D. Brophy, a member of this newsletter's Board of Editors, is a partner in Goldberg Segalla, practicing out of the firm's Philadelphia office.

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