|Duty to Warn in Connecticut and California|
1 of document(s) retrieved
April 30, 1998 98-R-0682
FROM: Lawrence K. Furbish, Assistant Director
RE: Duty to Warn in Connecticut and California
You asked what the duty of a therapist is regarding warning a potential victim based on statements made to the therapist by a patient.
Connecticut statutes allow, but do not require, psychologists, psychiatrists, marital and family therapists, and social workers to disclose information that would otherwise be confidential between the patient and therapist when they believe a serious risk of imminent personal injury to third parties exists. The statutes applying to the different therapists are worded slightly differently. They all authorize disclosure, but they do not require it nor do they place an affirmative duty on the therapist to warn.
However, a Connecticut therapist who does not act to warn a potential victim in certain circumstances could be civilly liable under the common law rule initially articulated in a California case, Tarasoff v. Regents, (17 Cal. 3d 425). This 1976 California Supreme Court case held that a therapist has an obligation to warn a potential victim when he becomes aware of a serious danger posed by one of his patients. It is not clear if Tarasoff would be followed by Connecticut courts.
In 1985 the California legislature enacted a law that somewhat limits the scope of the Tarasoff ruling. This law says that a therapist has a duty to warn only when the patient has communicated to the therapist a serious threat of physical violence against a reasonably identifiable victim and that that duty is met if the therapist makes reasonable efforts to tell the victim and police of the threat.
Communications between patients and their therapists are generally confidential and cannot be disclosed to a third party without the patient's consent or except in certain limited circumstances. Under these statutes a psychologist can disclose communications without the patient's consent if he "believes in good faith that there is risk of imminent personal injury to the person or to other individuals" (CGS § 52-146c(c)(3)).
A psychiatrist can disclose privileged communications without the patient's consent when he "determines that there is substantial risk of imminent physical injury by the patient to himself or others" (CGS § 52-146f(2)). A marital or family therapist can disclose privileged communications without the patient's consent when he "believes in good faith that the failure to disclose such communications presents a clear and present danger to the health and safety of any individual" (CGS § 52-146p(c)(2)).
Finally, a social worker can disclose confidential communications without a patient's consent when he "determines that there is a substantial risk of imminent physical injury by the person to himself or others" (CGS § 52-146q(c)(2)).
It is not clear if the principles established in Tarasoff will be followed in Connecticut courts. In the few cases that have cited it, the court has distinguished the situation it was ruling on from the facts in Tarasoff. For example, in Kaminski v. Fairfield (216 Conn. 29, 37(1990)) the Supreme Court said that Tarasoff "is distinguishable both because the plaintiffs did not have a professional relationship with [the perpetrator]…and because the defendant was not a specifically identifiable victim. " In Fraser v. United States (236 Conn. 625 (1996)) the Court was asked to decide if psychotherapists who are treating an outpatient assume a duty to exercise control over the patient to prevent the patient from committing an act of violence against a third person. The court chose to narrowly decide the question, saying no but limiting it to situations where the outpatient was not known to be dangerous and the victim was neither readily identifiable nor within a foreseeable class of victims (Fraser at p. 630).
Prior to Tarasoff it appears that California law was similar to our law: generally making patient/therapist communications confidential but allowing a therapist to make a disclosure (see Tarasoff footnote 13) in certain circumstances.
The Tarasoff case involved a man named Poddar who was a voluntary outpatient. He told Dr Lawrence Moore, his psychologist who was employed at the University of California at Berkley, of his intention to kill an unnamed but readily identifiable girl, Tatiania Tarasoff, when she returned from Brazil. At Moore's request, the campus police detained Poddar, but released him when he appeared rational. Moore wished to have Poddar committed, and he had two psychiatrists examine Poddar. They concurred, but the Moore's supervisor, who was chief of the psychiatry department, countermanded the decision and ordered that no action be taken against Poddar. No one warned Tatiania or her parents of her peril, and Poddar murdered her.
The court held that 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 p. 431)
In 1985 the California legislature adopted a statute on a psychotherapist's duty to warn. This law states that a therapist does not have a duty "to warn of and protect from a patient's threatened violent behavior…except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims” (Cal. Civil Code § 43. 92). The law goes on to say that if there is a duty to warn as outlined by the statute, the duty is discharged by the psychotherapist "making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency. "