To Invoke or Not to Invoke: Tarasoff Is the Question

September 27, 2019
Elliott B. Martin Jr, MD

The author presents for consideration and discussion two personal stories in which the so-called Tarasoff Rule, or the “duty to warn” a threatened third party, was invoked. One was arguably appropriate; the other, arguably not.


CASE REPORT

Two cases illustrate the dilemma of the duty to warn. The intricacies of Tarasoff involve so many variables, from state to state, scenario to scenario, case to case. How does one practice good clinical judgment? Following this piece, James L. Knoll IV, MD, provides a forensic analysis, in Psychiatric Malpractice Grand Rounds: The Tarasoff Dilemma.

I would like to present for consideration and discussion two personal stories in which the so-called Tarasoff Rule, or the “duty to warn” a threatened third party, was invoked. One was arguably appropriate; the other, arguably not. In my experience, invoking Tarasoff remains quite contentious, and even legal specialists are often indecisive. For patient confidentiality, details in the cases presented have been changed.

CASE 1

When I was an intern, we had a young man committed to us for attacking his mother, and for continuing to threaten her. This was especially problematic in that he lived with her, had no intention of living without her, and his mother was firmly set on his continuing to live with her. We held him for weeks, into months. He had several forensic evaluations along the way.

At first resistant, he eventually agreed to take medication. He learned “to say all the right things,” such that the forensic specialist assigned to his case agreed with the judge in the case that there were no longer grounds to hold him against his will. I, and others who had worked closely with him, did not agree, and so the Tarasoff rule was invoked.

I sat down face-to-face with the young man’s mother. I discussed at length with her that the patient would have to be discharged, and the reasons why. I explained as concretely as I could that although he had previously repeatedly made physical and homicidal threats toward her, he recently had been taking medication with superficial improvement such that a judge, as well as a specialist in criminal mental health, had advised us that we could no longer hold him against his will. She acknowledged all this with tears in her eyes and stoic resignation on her face. She absolutely understood what I was telling her, but she made it quite clear that she would welcome him back home regardless.

Two days later, he was arrested for stabbing his mother several times in the face. She survived the attack. He was eventually committed to a state forensics facility.

 

CASE 2

When I was a fellow at a major pediatric hospital, we had a very disturbed young man who had been sent to us by his outpatient therapist after he had revealed to her several notebooks detailing the many gruesome ways he was planning on eviscerating and alternatively torturing and taking apart piece by piece a particular older boy at his high school. The notebooks were filled, front to back, with minute, bizarre scribblings, macabre poems, as well as several hand-drawn pictures of a mutilated young man in various stages of deconstruction and decomposition. Here and there were very large printed words, “DIE! DIE!” followed by the intended victim’s name.

The victim was a student in the same school, two years older. He reportedly had no idea this younger boy, whose eroto-manic delusions had utterly gotten the best of him, felt this way about him. The patient’s target was captain of the football team, a major player on the debate team, highly ranked in his class, of a well-known and popular local family, and apparently destined for great things, not least of which was having the most popular girls in school hanging off both arms.

This younger boy was not popular. He was homely and overweight, suffered from psoriasis and acne, and was withdrawn and isolative. He had few, if any friends. His parents had put him in therapy for what they saw as depression related to his sexual orientation. It was clear over the weeks we had him in the hospital, however, that his depression was complicated by significant delusional thinking. He believed he in fact had had some sort of relationship with this other boy.

These delusions, in fact, were so intense, that our patient initially believed the older boy impregnated him. More importantly, and frighteningly, he believed he had been most grievously wronged by this boy. We never did learn what this great insult was. But, in lieu of his love/hate-object, he made frequent threats against his perceived unborn baby. He was determined to make “the father” pay for the perceived transgression.

By all accounts otherwise, the older boy had no idea this younger boy even existed. Again, we kept the patient as long as we legally could. He did seem to improve with the combination of medication and “milieu therapy.” Eventually we had no reason to keep him. His parents wanted him home; he wanted to go home. He was different than the young man in the first case, in that no one really believed he would now actually harm anyone. He seemed to have developed some insight, and he eagerly approached therapy. He had been in the hospital nearly three months.

My supervisors, in consultation with the hospital’s legal team, debated long and hard over whether Tarasoff needed to be invoked in this situation. It was illuminating to learn just how gray this area is. The legal team was mostly noncommittal. But eventually, and at the hapless trainee’s (namely, my) expense, my clinical supervisors came to view this opportunity to invoke Tarasoff as a “teaching moment.”

I notified the local police where this boy lived. I notified, with parents’ permission, the school administration. (The parents did not want their son to transfer to another school-our first, most insistent, and best recommendation.) And then I had to call the older boy’s parents.

A difficult conversation

“Hello? Mrs Smith?”

“Yes.”

“Yes, hi. My name is Dr Martin, and I’m calling from the hospital. You don’t know me, but I’m calling about your son.”

“Oh, my goodness, what about him? Is he okay?”

“Oh, yes. And I do apologize. He’s not here. In the hospital, I mean. In fact, I’ve never met him.”

“What is this about, Doctor?”

“Mrs Smith, I am required by law to inform you that we have a patient here who will be discharged tomorrow, and this patient has made repeated homicidal threats toward your son.”

“Is this some kind of joke?”

“No, no, Mrs Smith. I work on the psychiatric unit here at the hospital, and we have been working with this patient for months now. It is our opinion that this patient is no longer dangerous, but we are required by law to inform you of the threats made earlier to your son.”

“Who is this person?” I could hear the panic.

“I cannot tell you that.”

“What do you mean, you ‘can’t tell me that’?!”

“I apologize, Mrs Smith, and I know this is awkward-”

“No, no, no, no. You call me out of the blue, tell me you’re from a hospital, and then tell me you’re about to release a patient who has made threats to kill our son?! And worse, you tell me you cannot let me know who this person is!”

I had no response to that.

“You’ve got a lot of nerve, Doctor. Do you know who my husband is?”

“Ma’am, I once again apologize; and believe me, if it were up to me, we wouldn’t be having this conversation, but-”

“How dare you! How dare you call me like this! I’m calling our attorney right now! What did you say your name is?! We are going to find out who this psychopath is, and we are going to be sure this nutcase is not allowed anywhere near the school!”

“I have already notified the local police.”

“So they know the name of this psycho.” (I believe this was a statement).

“I’m going to call Bob right now. And you, Doctor so-and-so, believe me, you haven’t heard the last of this.”

That, in fact, was the last I heard of her, and honestly, I totally saw her point.

Conclusion

In the emergency department setting, we mostly turf cases in which there is a question of invoking Tarasoff. In other words, we commit patients to the hospital and let the inpatient folks deal with it. We work under a (creative) assumption that by doing so, we absolve ourselves of the duty to warn.

But again, I’ve never gotten a straight answer on that one either.

Dr Martin is Director of Medical Psychiatry at the Newton-Wellesley Hospital in Newton, MA, and a Clinical Assistant Professor of Psychiatry at Tufts University School of Medicine in Boston.

Disclosures:

The author reports no conflicts of interest concerning the subject matter of this article.