It's Been a Privilege: Advising Patients of the Tarasoff Duty and its Legal Consequences for the Federal Psychotherapist-Patient privilege

Authors

Elisia Klinka

Keywords

psychotherapy, privilege, confidentiality, ethics

Abstract

State laws modeled on Tarasoff v. Regents of the University of California require psychotherapists to warn potential victims of law enforcement when treating dangerous patients who make serious threats of harm to another person. In practice, many psychotherapists advise their patients who make such threats about their duty under these Tarasoff-model laws. Although they are not required to make these advisories by law, psychotherapists generaly assume that they asldo have a concomitant ethical duty to advise their patients taht such threats will not be kept confidential, as their communications normally world be. This Note looks at how these advisories affect the status of privilege for subsequent threatening statements relayed to a psychotherapist. It explores the opposing views in the federal circuit courts regarding whether such an advisory precludes the existence of privilege for subsequent statement, or whether the advisory operates as a waiver to the privilege. This Note argues taht threats communicated to a psychotherapist after an advisory about a psychotherapist's Tarasoff duty cannot be considered privileged if the patient intended for the threat to be passed on to a third party. Psychotherapists must not be aware of the possible legal consequences regarding the patients' diminished expectation of confidentiality and lack of privilege following such advisories. In order to act in their patients; best interst, psychotherapists should educate themselves about the scope of a Tarasoff duty in their applicable states and should conider alternative intervention techniquest that could reduce dangerous patients' risk of harm. Psychotherapists should continue to follow professional ethical guidelines about advising patients of the limits of confidentiality, in order to bolster the patients' posible privilege glaims later on and minimize harm to the treatment relationship.

Recommended Citation

Elisia Klinka, It's Been a Privilege: Advising Patients of the Tarasoff Duty and its Legal Consequences for the Federal Psychotherapist-Patient privilege, 78 Fordham L. Rev. 863 (2009).
Available at: https://ir.lawnet.fordham.edu/flr/vol78/iss2/12