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Back to the Past in California: A Temporary Retreat to a Tarasoff Duty to Warn

Dr. Weinstock is Clinical Professor of Psychiatry, and Dr. Vari is Resident in Psychiatry, Department of Psychiatry and Biobehavioral Sciences, David Geffen School of Medicine, University of California, Los Angeles, CA. Dr. Weinstock is also Psychiatrist, Department of Veterans Affairs Greater Los Angeles Health Care System, Los Angeles, CA. Dr. Leong is Clinical Professor of Psychiatry, Department of Psychiatry and Behavioral Sciences, University of Washington School of Medicine, Seattle, and Psychiatrist, Center for Forensic Sciences, Western State Hospital, Tacoma, WA. Dr. Silva is in private practice in San Jose, CA. The views expressed in this paper are solely those of the authors and do not necessarily represent those of the University of California, Department of Veterans Affairs, University of Washington, or Washington State Department of Social and Health Services.. Address correspondence to: Robert Weinstock, MD, UCLA-SPS, John Wooden Center West, 221 Westwood Plaza, Los Angeles, CA 90095-1556. E-mail: rweinstock{at}earthlink.net

The original Tarasoff decision created a duty for California psychotherapists to warn potential victims of their patients. After rehearing the matter two years later, the California Supreme Court, in the landmark second Tarasoff decision, changed the duty to warn to a duty to protect potential victims, with warning as only one of the options for discharging that duty. Despite this change, the Tarasoff duty frequently was referred to erroneously as a duty to warn. This misunderstanding and an ambiguous California immunity statute culminated in "simplified" jury instructions and two appellate court decisions in 2004 in which it was assumed without question that there was a duty to warn, with liability for not doing so regardless of rationale. As a result of persistent lobbying by the California Psychiatric Association and other mental health groups, a recent bill corrected the problem created by the courts, returning the Tarasoff duty to a duty to protect.