Key ruling defined psychotherapist's role in averting patient's violent acts

LETTER — Posted Sept. 6, 2004

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Regarding "Discretion often the better part of valor" (Column, Aug. 2):

In the above cited Ethics Forum column, the author provides an incomplete description of the 1976 ruling in Tarasoff v. Regents of the University of California. The reference suggests that Tarasoff 1976 -- often called "Tarasoff II" -- mandates that "a psychiatrist must disclose a patient's homicidal thoughts to specific individuals who are in danger." The California Supreme Court set that mandate in a 1974 decision in that case. However, the American Psychiatric Assn. filed an amicus brief that asked the court to revisit their decision because, if it were to stand, it would likely cause many unnecessary "warnings," which would compromise patient confidentiality without any useful purpose being served.

In 1976, the Court did revisit its decision and ruled that a psychotherapist has a duty to protect an intended victim using means that include warning, notifying law enforcement, or whatever steps are "reasonably necessary under the circumstances."

There has been much confusion in the various states about these rulings. The "duty to warn" has been the usual interpretation, but it is not the case.

The Tarasoff II ruling, and many state laws (including my home state of Louisiana), are permissive regarding a breech of confidentiality. This requires a filter through the clinical judgment of the psychotherapist, which includes psychiatrists, psychologists and clinical social workers.

Many malpractice cases have been decided on the basis of a failure to "warn."

The problem is not a failure to warn, but rather a failure to protect -- a most difficult proposition. I know of only one instance where a suit was brought because of an effort to protect, and that was my own (Viviano v. Moan et. al).

It went to the Louisiana Supreme Court, and the judgment for the defendants (including me and Dr. Moan) was upheld despite no "duty to warn" statute in Louisiana at that time. Now there is a statute that reflects the permissive intent of the Tarasoff II ruling of 1976.

Our AMA Code of Medical Ethics addresses this issue directly in Opinion 5.05 stating in pertinent part:

"The obligation to safeguard patient confidences is subject to certain exceptions which are ethically and legally justified because of overriding social considerations. Where a patient threatens to inflict serious bodily harm to another person or to him or herself, and there is a reasonable probability that the patient may carry out the threat, the physician should take reasonable precautions for the protection of the intended victim, including notification of law enforcement authorities."

Hopefully this will clarify a common misunderstanding, and will result in a better informed physician population.

Dudley M. Stewart Jr., MD, New Orleans

Editor's note: Dr. Stewart is a member of the AMA Council on Ethical and Judicial Affairs, writing as an individual.

Note: This item originally appeared at http://www.ama-assn.org/amednews/2004/09/06/edlt0906.htm.

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