Protecting victims of violent patients while protecting confidentiality

In this article I revisit Tarasoff v. Regents of the University of California (1976), a case decided by the California Supreme Court in 1976 and followed in whole or in part in approximately 33 U.S. jurisdictions. In Tarasoff, perhaps the most notorious case in mental health law, the court held that psychotherapists have a duty to protect intended victims of their patients' conduct if that conduct presents a serious danger of violence. The most prominent means of protection is to warn potential victims and law enforcement personnel. I argue that Tarasoff is bad law, bad social science, and bad social policy. Because of therapists' ethical obligation to disclose the limits of confidentiality at the beginning of treatment, informing patients of the therapist's duty to disclose threats may inhibit patients' expressions of violent urges. Alternatively, as in Tarasoff, once a threat of violence is disclosed, the patient may never return to therapy, making it impossible to work through the threat of violence. I argue that rather than mandate the breaching of confidentiality, it is sounder public policy to give therapists the discretion to disclose so that they may take other measures to protect potential victims. Finally, I briefly touch on the impact of cultural disparity between therapist and patient in these cases.