Tarasoff and 'Ewing vs. Goldstein' Statute in California
An Update

By Ofer Zur, Ph.D.

Table Of Contents

 

Original Ruling:

Originally, California Civil Code 43.92 clarifies the Tarasoff Statute and states, with regard to the duty to warn “where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.” In these situations, the psychotherapist’s duty is to make a “reasonable effort to communicate the threat to the victim or victims and to a law enforcement agency.” Failure to act may also result in potential civil liabilities.

CA law (AB 733), as of January 1, 2007

Important New Ruling (July/04) re: Tarasoff Mandated Reporting:

In July 2004 California Court Extends Tarasoff Mandated Reporting Standard. Ewing v. Goldstein is a recent California appeals court decision that extended the interpretation of the Tarasoff warning law. The court expanded the definition of Civil Code § 43.92 to “include family members as persons covered within the statute who, upon communication to a therapist of a serious threat of physical violence against a reasonably identifiable victim, would trigger a duty to warn.” The court states in Goldstein: “The intent of the statute is clear. A therapist has a duty to warn if, and only if, the threat which the therapist has learned – whether from the patient or a family member – actually leads him or her to believe the patient poses a risk of grave bodily injury to another person.” The expanded duty from now on applies to credible threats received from the patient, or the patient’s family, however, the court made clear that its decision did not go beyond “family members.”

More Online Information of the New Ruling:

Implications for California Psychologists, MFTs, LCSWs and Psychiatrists:

Obviously, the most important question is what does the Ewing decision mean for psychotherapists in California. Simply put, the court decision means that therapists in California could be held liable for failure to issue a Tarasoff warning, when the information regarding the dangerousness of one of their clients comes from a patient’s family member rather than the client.

The reaction to the Ewing decision has varied widely within our profession. Many experts are deeply concerned with the potential for further deterioration of psychotherapy privacy as a result of the decision. Others are concerned that the decision will be misused in family, custody and other disputes, the way child abuse reporting has been misused. Yet, other experts view the alarmed responses as exaggerated and believe that the impact of the decision is rather limited. They view the decision as merely implying that therapists cannot ignore third party statements about dangerousness and do not view it as a major change from how therapists have already been practicing. They take the position that, as before, therapists must integrate any statements about dangerousness, regardless of its source, into the clinical-ethical-legal decision-making. Undoubtedly, it will take time and further court rulings before the dust settles on this issue.

However, the new court decision may have further significant implications for therapists as it leaves open extremely important questions, such as who is considered to be a family member? How does one verify that the person who communicates to the therapists is who he says he is? What about a credible third party report of threat? How does the communication take place: email, fax, phone call? How is the potential victim identified? At this time, these and many other questions remain unanswered for the most part.

When confronted with a Tarasoff situation, consult with a legal expert and document your clinical-ethical-legal decision-making in detail. Additionally, I suggest that California psychotherapists add to their Office Policies and Informed Consent the following wording (in blue) in the Confidentiality section:

Some of the circumstances where disclosure is required by the law are: where there is a reasonable suspicion of child, dependent or elder abuse or neglect; where a client presents a danger to self, to others, to property, or is gravely disabled or when client’s family member/s communicate to Dr. Zur that the client presents a danger to others.

 
Professional-Legal Response to Ewing

Professional organizations such as CAMFT and CPA have been appropriately concerned with the potentially, far-reaching, negative ramifications of the Ewing ruling on psychotherapists and psychotherapy. They have supported legislation such as AB 733 to try and attend to these concerns.

 
AB 733 (Nation) Duty to Warn Signed Into Law:

CPA Reported 8/30/06:

AB 733 (Nation) was signed into law by the Governor last week. The bill will become law on January 1, 2007. From its initial form, the bill was narrowed to deal with the issue of the Judicial Council instructions given to juries in cases where the duty to warn is invoked (or not invoked), such as Ewing v. Goldstein. Current Judicial Council instructions state that a therapist has to BOTH notify the intended victim and the law enforcement in order to receive immunity. This is contrary to the Civil Code which reads that the therapist must make reasonable attempts to contact the intended victim and law enforcement. The current duty can also be discharged by hospitalizing a patient, for example.
Retrieved from http://www.cpapsych.org/capitolnotes/cn2006-0830.pdf on September 17, 2006.

BBS web page reports on the following pending legislation

AB 733 – This bill would require a psychotherapist to warn a potential victim and police when a patient, himself or herself, communicates to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim. Encourages a therapist, when a patient’s threat has been communicated by a third party, to contact the patient should the therapist believe it is necessary to assess whether the patient poses a serious threat of physical violence against a reasonably identifiable victim.

California Civil Code:
From: Laws and Regulations Relating to the Practice of Psychology, 2009. P. 196

Psychotherapist’s Duty to Warn of Patient’s Violent Behavior; Immunity from Liability
Section 43.92.
(a) There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to warn of and protect from a patient’s threatened violent behavior or failing to predict and warn of and protect from a patient’s violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.
(b) There shall be no monetary liability on the part of, and no cause of action shall arise against, a psychotherapist who, under the limited circumstances specified above, discharges his or her duty to warn and protect by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency.
Amended by Stats. 2006, ch. 136 (AB 733), Section 1.
Retrieved from http://www.psychboard.ca.gov/applicants/quickref-laws.pdf on Feb. 20, 2010.

Receive further updates on legal and other challenges to Ewing and other clinical updates.

Office Policies and Informed Consent

If you are a practicing psychotherapists and do not have an Office Policies and Informed Consent that you give to clients before or right at the very beginning of the first session, you are likely to be operating below the standard of care.

Such an Office Policies and Informed Consent often includes the following sections:

  • Therapist’s identifying information and license #
  • Statement of confidentiality
  • When Disclosure Is Required By Law
  • When Disclosure May Be Required
  • Health Insurance & confidentiality of records
  • Litigation Limitation
  • Consultation disclosure
  • E – Mails, Cell phones, Computers and Faxes
  • Medical Records and Your Right to Review Them
  • Telephone and Emergency Procedures
  • Payment and Insurance Reimbursement
  • Mediation and Arbitration
  • Process of Therapy
  • Scope of Practice
  • Discussion of Treatment Plan
  • Termination
  • Cancellation Policies
  • Agreement & Signature

The information in this page contains no legal, ethical, or clinical advice and is not a substitute for legal, clinical, or ethical consultation.

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