Where the Protective Privilege Ends: California Changes the Rules for Dangerous Psychotherapy Patients

Abstract

Recent California court cases, building on expansive interpretations of the dangerous patient exception to the psychotherapist–patient privilege, have altered the duties and obligations of mental health professionals who treat dangerous patients. The 15-year-old Tarasoff duty to warn and protect is established tradition in California, but newly enlarged is the duty of psychotherapists to testify against their patients at criminal trials, usually after attempts to protect, including warnings, have failed. The psychotherapist's duties to warn and to testify both use as a foundation a section of the Evidence Code that was designed by the legislature to increase a psychotherapist's discretion to speak out but has been modified by the appellate courts to diminish the psychotherapist's power to choose to remain silent. This article explores the implications of these legal developments and the obligations they impose on psychotherapists who bear the risk of treating dangerous patients.