Commentary: so the pendulum swings--making sense of the duty to protect

Psychiatry has been struggling for nearly 40 years to make sense of the duty to protect. The great jurisdictional disparity as to what constitutes the duty has been a significant contributing factor. The American Psychiatric Association (APA) released the Model Statute in 1987 to establish a framework to guide legislators and courts toward consensus, to some effect. In response to case law and statutory requirements in most states, psychiatric practice has incorporated the assessment of risk to third parties by patients as an essential element of psychiatric assessment and care. Although court cases shortly after the Tarasoff decision expanded the scope and breadth of the duty to protect, in recent years there appears to have been a shift toward a more narrow interpretation as to what conditions must exist to find a defendant psychiatrist guilty of failing to exercise the duty properly. The threshold for the duty to warn or protect often rests precariously beside the criteria permitting an exception to confidentiality, placing the psychiatrist in a tenuous position. If appellate verdicts continue to find for the defendant psychiatrist in cases claiming a breach of the duty to protect, it could have an impact on how psychiatrists assess and manage threats made by patients toward third parties.