Should therapists breach confidentiality over a patient's violent threat?
Posted Jul 28, 2014
In 1976, the California Supreme Court ruled that psychotherapists have a duty to protect potential victims if their patients made threats or otherwise behaved as if they presented a "serious danger of violence to another." In ruling on the case of Tarasoff v. Regents of the University of California, the court determined that the need for therapists to protect the public was more important that protecting client-therapist confidentiality.
Guided by the court decision, the state of California later passed a law stating that all therapists have a duty to protect intended victims by either warning victims directly, notifying law enforcement directly, or taking whatever other steps to prevent harm might be needed. Despite the controversy over the circumstances for breaching confidentiality, Tarasoff laws have been adopted across many U.S. states and have guided similar legislation in countries around the world.
The Tarasoff case is based on the 1969 murder of a university student named Tatiana Tarasoff. The perpetrator, Prosenjit Poddar, was an Indian graduate student at the University of California, Berkeley who had met Tarasoff at a folk dancing class on campus. While they went on several dates, they soon disagreed on the seriousness of their relationship and Poddar became obsessed with her. When Tatiana rebuffed him, Poddar began stalking her and underwent an emotional crisis for which he began psychological counseling at the university medical centre.
His therapist, Dr. Lawrence Moore, became concerned when his patient confessed his intention of killing Tarasoff (he never actually named her in the sessions, but identifying Tarasoff wasn't difficult). While the patient showed up for eight sessions, Moore then advised him that, if the death threats continued, then he would have no choice but to have Poddar hospitalized. After this ultimatum, Poddar stopped attending treatment and Moore was left with the question of what to do next.
After consulting with his psychiatrist supervisor, Dr. Harvey Powelson, they wrote a letter to campus police advising them of the death threats. Police then interviewed Poddar in an apartment that he shared with a roommate (who happened to be Tatiana Tarasoff's brother). When Poddar denied making any death threats and assured police that he would stay away from Tarasoff, he was released and Dr. Powelson ordered all therapy notes destroyed. Despite his promise, Prosenjit Poddar continued the stalking behaviour.
On October 27, 1969, Poddar confronted Tatiana Tarasoff at her home. When she attempted to flee, he pursued her and then stabbed her to death with the kitchen knife he had been carrying. After returning to her home, he called police. Despite attempting to plead guilty to manslaughter, Prosenjit Poddar went on trial for first-degree murder and was found guilty of second-degree murder instead. He served five years in prison until a lawyer successfully appealed the conviction. Though the state opted not to retry the case, Poddar was deported to India where he lives in relative anonymity (and has since married).
Shortly after Poddar's release, Tatiana Tarasoff's parents launched a civil suit against the therapists and the University of California, Berkeley. The suit stated that the defendants should have warned Tarasoff directly about the death threats which might have saved her life. Moore and Powelson defended their actions on the grounds of their duty to their patient over a private third party and the trial court agreed with them. After the plaintiffs appealed this decision, the California Supreme Court reviewed the case and finally handed down what would become a landmark decision in 1976.
In the decades following the Tarasoff decision, 33 U.S. states have passed Tarasoff laws while another 11 have left the issue up to the discretion of the therapist. Here in Ontario, where I practice, there is no formal Tarasoff law, but therapists are encouraged to "err on the side of life" in potentially life-threatening situations. There have been later cases which have modified many of the conditions of the Tarasoff decision and therapists are usually urged to seek legal advice before breaching patient confidentiality due to the complicated legal picture involved.
But is the Tarasoff decision needed to protect life? In a 2013 presidential address by Donald N. Bersoff of Drexel University (who was then-president of the American Psychological Association), he argued that the decision is "bad law, bad social science, and bad social policy."
As Bersoff pointed out, one of the major problems with the Tarasoff decision is that it requires therapists to decide how the seriousness of the threat being made. Is the risk more or less than 50 percent? And how does a therapist decide that? Breaching confidentiality is a serious matter and can severely undermine the trust that patients have in their therapists.
Even the kind of violence that the patient might engage in is often hard to judge. Does a Tarasoff warning only apply when a patients threatens death or serious injury? What if the patient threatened to destroy someone's house or car? Should a threat to property be treated in the same way as a death threat? While some jurisdictions have ruled that threats to property are covered under Tarasoff laws, other jurisdictions have not.
Bersoff also suggested the following scenarios:
- The patient says he is going to go home tonight and stab his wife in the arm. Asked if he is going to kill her, he responds, “No, I just want her to bleed a bit.”
- The patient says he is going to go home tonight and punch his wife in the jaw.
- The patient says he is going to go home tonight and just cut off the tip of her pinky (on the non-dominant hand).
- The patient says he is going to go home tonight and slap his wife in the face.
- The patient says he is going to go home tonight and scream at his wife until she cries.
When presented to his students or colleagues, Bersoff reported that he often received varied responses on how the Tarasoff law should be applied in these different situations. Some of the scenarios might be covered under Tarasoff laws since they involve actual physical violence (despite not being life-threatening) but not necessarily.
In handing down the Tarasoff decision, the California Supreme Court argued that therapists had a special relationship with their patients which gave them a duty to control their behavior. The court decision based the concept of a "special relationship" between therapist and patient on the responsibility that physicians have in protecting society from dangerous patients (such as a violent patient escaping from a psychiatric hospital). As Bersoff points out, therapists cannot predict actual risk of violence and there is no way to be certain that violence would occur if they fail to act.
In the case of Prosenjit Poddar, he had no actual history of violence and the therapists already took that precaution of warning campus police. Since many patients who report violent fantasies are necessarily going to act out, there is really no way to know whether warning Tatiana Tarasoff directly might have prevented her murder.
Though the Tarasoff murder is an extreme example, it reflects the ethical decisions many therapists are called upon to make. Bersoff also pointed out that warning Poddar that his threats would be reported to the police made him terminate his therapy sessions and left him more isolated than ever. Might he have overcome his obsession with Tarasoff if he had stayed in therapy? And did the breach in confidentiality help bring about the very violence his therapists were trying to prevent? These are questions that can never be answered.
Whether or not the Tarasoff decision is justified, therapists in many jurisdictions are now required to follow it. It also means that therapists have to advise patients as soon as treatment begins about the limits of confidentiality. Patients then have to decide whether to continue with treatment, despite having no guarantee that what they say might lead to the police being called or a victim receiving a warning.
Therapists are also obliged to weigh every threatening statement made in treatment to decide whether it is a genuine threat or just a fantasy that would never be carried out. Speaking as a forensic psychologist, this is an extremely difficult decision to make even for someone with the necessary training. It requires having access to information that many therapists might not have, i.e., criminal history or records from previous therapists.
While Bersoff does not suggest that potentially violent patients should be allowed to endanger the public, he does argue that breaching confidentiality should only be done as a last resort. Even in cases where the threat of violence is imminent, therapists can encourage patients to seek immediate hospitalization as a voluntary patient or otherwise persuade them to see a psychiatrist for medication.
Simply telling a potentially violent patient that threats are taken seriously and that the therapist is willing to make that extra effort to defuse the risk of violence can make a difference. When a breach of confidentiality is necessary, asking the patient's permission first can be an important step in preserving the therapist-patient relationship as well.
But what if therapists are required to breach confidentiality due to state or provincial laws? As Bersoff notes in concluding his article, therapists walk a thin line between protecting confidentiality and protecting the potential victim.
If a therapist decides to breach confidentiality, he or she might face a malpractice complaint from an outraged patient insisting that the threat was never serious. Otherwise, therapists might face a wrongful death suit for not acting in time. Perhaps more importantly, Tarasoff laws turn therapists into agents of the state who are obliged to report on anything that might potentially lead to a crime happening.
The final word may came from former APA president Max Siegel and his own comments after the Tarasoff decision was handed down: "This was a day in court for the law and not for the mental health professions. If the psychologist had accepted the view of absolute, inviolate confidentiality, he might have been able to have kept Poddar in treatment, saved the life of Tatiana Tarasoff, and
avoided what was to become the Tarasoff decision."
So, are Tarasoff laws needed? You be the judge.