Tarasoff Duties after Newtown: Currents in Contemporary Bioethics

Seung-Hui Cho , a 23-year-old student at Virginia Tech with a long history of mental illness, killed 32 students and faculty and wounded 17 others on campus in Blacksburg, Virginia, on April 16, 2007. He also killed himself after the attack.

Hassan Malik Nidal Major , a 39-year-old Army psychiatrist who was described as increasingly isolated and under pressure, killed 13 and wounded 32 at Fort Hood, Killeen, Texas, on November 5, 2009. He was convicted of murder by a military court in 2013.

Loughner Lee Jared , a 22-year-old exhibiting symptoms of mental illness, killed six and wounded 13 (including then-Rep. Gabrielle Giffords) outside a Safeway supermarket in Tucson, Arizona, on January 8, 2011. He pled guilty to 19 counts of murder or attempted murder.

Holmes Eagan James , a 24-year-old with a history of mental illness, killed 12 and wounded 70 at a movie theater in Aurora, Colorado, on July 20, 2012. He is awaiting trial.

Lanza Adam , a 20-year-old who had Aspergers syndrome, but no diagnosed mental illness, killed 20 children and six adults, not counting his mother and later himself, in Newtown, Connecticut, on December 14, 2012.

See Buckner Fillmore Firestone Marvin , ‘Where the Public Peril Begins: 25 Years After Tarasoff, Journal of Legal Medicine 21, no. 2 (2000): 187–222.

It has been asserted that reporting Poddars threat to the campus police actually made matters worse because he stopped counseling. See Buckner and Firestone, id., at 194. It is unclear whether additional counseling would have prevented the attack on Tanya, and a jury could well have determined that more effective steps to protect Tanya, including warning her of Poddars threats, would have prevented her murder.

Tarasoff v. Regents of Univ. of Cal., 108 Cal. Rptr. 878 (Cal. Ct. App. 1973).

Tarasoff v. Regents of Univ. of Cal., 529 P.2d 553 (Cal. 1974).

See Buckner & Firestone , supra note 6, at 196.

Merton V. , ‘Dangerous Patient: Implications of Tarasoff for Psychiatrists and Lawyers, Emory Law Journal 31, no. 2 (1982): 263–343, at 295.

Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334 (Cal. 1976).

Id., at 345.

Id., at 346.

Id.

Id., at 347.

Id.

See Cantu C. E. Jones M. H. , Bitter Medicine: A Critical Look at the Mental Health Care Providers Duty to Warn in Texas, St. Marys Law Journal 31, no. 2 (2000): 359–403, 377–378.

The term physician-patient relationship is normally used to characterize an individuals relationship with a medical doctor, and psychotherapists may be clinical psychologists, social workers, or individuals with other training. The nonphysician therapists commonly refer to the individuals they counsel as clients. For the sake of consistency, the term therapist-patient relationship is used in this article to apply to all psychotherapists and those they counsel.

See, generally, Lake P. F. , Revisiting Tarasoff, Albany Law Review 58, no. 1 (1994): 97–173.

See, e.g., Bardoni v. Kim, 390 N.W.2d 218 (Mich. Ct. App. 1986); McIntosh v. Milano, 403 A.2d 500 (N.J. 1979); Wofford v. Eastern State Hosp., 795 P.2d 516 (Okla. 1990); Emerich v. Phila. Ctr. For Human Dev., Inc., 720 A.2d 1032 (Pa. 1998); Peck v. Counseling Serv., Inc., 499 A.2d 422 (Vt. 1985); Petersen v. State, 671 P.2d 230 (Wash. 1983).

Cal. Civ. Code § 43.92.

See National Conference of State Legislatures, Mental Health Professionals Duty to Warn, available at <www.ncsl.org/issues-research/health/mental-health-professionals-duty-to-warn.aspx> (last visited February 13, 2014).

The 29 states with mandatory reporting laws: Alabama, Arizona (duties vary for different professions), California, Colorado, Delaware (duties vary for different professions), Idaho, Illinois (duties vary for different professions), Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Tennessee, Utah, Vermont, Virginia, Washington, and Wisconsin.

The 16 states and the District of Columbia with permissive reporting laws: Alaska, Arkansas, Connecticut, District of Columbia, Florida, Hawaii, Kansas, Mississippi, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Texas, West Virginia, and Wyoming.

The four states with no duty to report: Maine, Nevada, North Carolina, and North Dakota.

The Georgia Code of Ethics of the State Board of Examiners of Psychologists, ch. 510–4–.02 § 4.05 allows discretionary disclosure of confidential information to protect the client, psychologist, or others from harm. Despite Georgias lack of statutory authority, it is important to note that Georgia case law has established that where the course of treatment of a mental patient involves an exercise of ‘control over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient. Bradley Ctr., Inc. v. Wessner, 287 S.E.2d 716, 721 (Ga. Ct. App. 1982).

Arizona, Delaware, and Illinois.

For example, the Delaware law provides that mental health providers must warn against threats to clearly identified victims as well as clearly identified property. By contrast, Maryland law provides that mental health providers only must warn against threats against specific victims or groups, but may do so regardless of whether the patients intent to harm was expressed in speech, conduct, or writing.

The states granting immunity if the mental health professional complies with certain statutory requirements are Alabama, Arizona, California, Colorado, Delaware, Louisiana, Maryland, Michigan, Minnesota, Nebraska, New Hampshire, Tennessee, Virginia, and Washington.

Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 344 (Cal. 1976).

American Medical Association, Code of Medical Ethics § 5.05 (2010).

American Psychological Association, Ethical Principles of Psychologists and Code of Conduct § 4.05(b)(3) (2010).

American Psychiatric Association, Principles of Medical Ethics § 4, point 8 (2013).

Pub. L. No. 104–191, 110 Stat. 1936 (codified in scattered sections of 18, 26, 29, 42 U.S.C. (2012).

45 C.F.R. Parts 160, 164 (2013).

45 C.F.R. § 160.102 (2013).

45 C.F.R. § 164.512 (2013).

45 C.F.R. § 164.512(j) (2013).

Alaska, Arizona, Colorado, Connecticut, Delaware, District of Columbia, Florida, Idaho, Indiana, Maryland, New Jersey, New York, Ohio, Oklahoma, Oregon, Texas, Virginia, West Virginia, and Wyoming.

U.S. Department of Health and Human Services, HIPAA Privacy Rule and Sharing Information Related to Mental Health, available at <http://www.hhs.ocr/privacy/hipaa/understanding/special/mhguidance.html> (last visited February 21, 2014).

Id.

20 U.S.C. § 1232g (2008).

34 C.F.R. Part 99 (2012).

See, e.g., Office of the Governor of Virginia, Virginia Tech Review Panel: Mass Shootings at Virginia Tech, available at <http://www.washingtonpost.com/wp-srv/metro/documents/vatechreport.pdf> (last visited February 18, 2014).

34 C.F.R. § 99.36(a) (2013).