I take it as an article of faith that anyone who expects to be taken seriously as a mental health law scholar must write at least one Tarasoff article that is taken seriously.1-9 Notwithstanding the personal implications and its centrality to mental health professionals, in my 30 years of teaching and writing about the intersection of psychiatry and law, I had managed to avoid that rite of passage. I was not comfortable and found it difficult to say something original on a topic that has been so extensively explored. Part of the lure of this field of the law was that unlike constitutional law or property, which had long ago been carved up by some old dead white guys, mental health law was young, vibrant, and alive. As of 2009, all of Tarasoff authors, save one, had long since died. Nonetheless, unable to refuse the editor’s request and hold my head high as a Psychiatric Times editorial board member, I take this opportunity to revisit the decision in the hope of gaining new insights.
The case in brief
The plaintiffs in the lawsuit (Tarasoff v Regents of the University of California, 551 P2d 334 [Cal 1976]), the victim’s parents, alleged that a patient (Poddar) communicated his intention to kill their daughter to his therapist, but that the therapist neither warned her nor took other appropriate actions and sought damages for the resulting harm. The de-fendants moved to dismiss.
There are no new facts to add to the recitations found in hundreds of books and articles on Tarasoff, and nobody wants to hear them again. The trial transcript might have provided some new perspective, but there was no trial or evidentiary hearing. According to the Supreme Court of California, there had been a “Complaint” containing the claimants’ version of events. But instead of an “Answer,” which might have admitted or denied the factual allegations of the complaint, the defendants filed a “Motion to Dismiss,” which, according to convention, accepted the plaintiffs’ factual allegations for purposes of the motion only.
The court granted the motion to dismiss, and the plaintiffs took this appeal. No trial. No evidentiary hearings. And no evidence. The report of Poddar’s appeal of his second-degree murder conviction centers on his mental state and consequential culpability (People v Poddar, 103 Cal Rptr 84 [Cal Ct App 1972]). Although there are inherent limits in every case on accurately reconstructing the past, this case was resolved before an attempt to do so. The facts, therefore, that have been passed on from one article to the next may be right or may be urban legend. We do not know.
The legal ramifications
Why does it matter what the sources of the reported facts were anyway? Why should we care whether some came from a journalist, some from a paralegal who worked for the defendants, and some from the authors of the Tarasoff articles’ independent investigation?
First, we have an imperfect but known reliability filter called the “Rules of Evidence” to screen proof of facts in trial. We cannot endorse extra-judicial fact-finding without knowledge of the process and its reliability. Second, cognizant of the limitations of this fact-finding process, the judicial system is explicit about the standard of persuasion, which expresses the level of confidence required on an issue—probable cause, preponderance of the evidence, clear and convincing or beyond a reasonable doubt. Third, the legitimacy of the fact finder in our judicial system—jury or judge—is grounded in constitutional law and public scrutiny.
By what process were these “facts” determined? To what degree of certainty? By what authority? What are the implications for the scholarship perched on this precarious foundation? Before going any further, this is a conversation in which those authors who discovered or applied those facts should be included.
The opinion of the California high court recites the procedural history of the case.10 A civil claim for damages was brought in a California court in Alameda County, against a California university health center psychologist, among others. It alleged that in 1969, a student-patient of the psychologist murdered another student. In response, the defendants filed a motion to dismiss.
1. Appelbaum P. Implications of Tarasoff for clinical practice. In: Beck J, ed. The Potentially Violent Patient and the Tarasoff Decision in Psychiatric Practice. Arlington, VA: American Psychiatric Publishing Inc; 1985:94.
2. Bonnie RJ. Professional liability and the quality of mental health care. Law Med Health Care. 1988;16: 229-239.
3. Buckner F, Firestone M. “Where the public peril begins.” 25 years after Tarasoff. J Leg Med. 2000;21: 187-222.
4. Gutheil T. Moral justification for Tarasoff-type warnings and breach of confidentiality: a clinician’s perspective. Behav Sci Law. 2001;19:345-353.
5. Monahan J. Limiting therapist exposure to Tarasoff liability: guidelines for risk containment. Am Psychol. 1993;48:242, 245.
6. Perlin ML. Tarasoff and the dilemma of the dangerous patient: new directions for the 1990’s. Law Psychol Rev. 1992;16:29-63.
7. Slobogin C. Tarasoff as a duty to treat: insights from criminal law. Univ Cincinnati Law Rev. 2006;75:645.
8. Stone AA. The Tarasoff decisions: suing psychotherapists to safeguard society. Harv Law Rev. 1976;90:358-378.
9. Wexler DB. Patients, therapists, and third parties: the victimological virtues of Tarasoff. Int J Law Psychiatry. 1979;2:1-28.
10. Tarasoff v Regents of the University of California, 551 P2d 334 (Cal 1976).
11. Palsgraf v Long Island Railroad Co, 162 NE 99 (NY 1928).
12. Tarasoff v Regents of the University of California, 551 P2d 334, 340 (Cal 1976).
13. New State Ice Co v Liebmann, 285 US 262, 311 (1932).
14. Tarasoff v Regents of the University of California, 551 P2d 348 (Cal 1976).
15. Palsgraf v Long Island Railroad Co, 162 NE 343 (NY 1928).
16. Jablonski v United States, 712 F2d 391 (9th Cir 1983).
17. Brady v Hopper, 751 F2d 329 (10th Cir 1984).
18. O’Keefe v Orea, 731 So2d 680 (Fla Dist Ct App 1st Dist 1998).
19. Orea v O’Keefe, 725 So2d 1109 (Fla 1998).
20. Garamella v New York Medical College, 23 F Supp 2d 167 (D Conn 1998).
21. Branscomb v Robert F. Kennedy Medical Center, 2008 WL 4868415 (Cal Ct App 2008).
22. Tarasoff v Regents of the University of California, 551 P2d 334, 440 note12 (Cal 1976).
23. Tarasoff v Regents of the University of California, 551 P2d 334, 347 (Cal 1976).