BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1134 (Yee)
As Amended March 28, 2012
Hearing Date: May 1, 2012
Fiscal: No
Urgency: No
RD
SUBJECT
Persons of Unsound Mind: Psychotherapist Duty to Protect
DESCRIPTION
Existing law provides for general immunity for psychotherapists,
as defined, in failing to warn of and protect from a patient's
violent behavior except in those cases in which the patient has
communicated to a psychotherapist a serious threat of physical
violence against a reasonably identifiable victim or victims. If
a threat is made against a reasonably identifiable victim or
victims, existing law provides for immunity if the
psychotherapist 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.
This bill would delete references in the above to a "duty to
warn" for psychotherapists.
BACKGROUND
Under common law, persons generally owe no duty to control the
conduct of another, or to warn anyone endangered by the conduct
of another. An exception to that general rule applies to
individuals who have a special relationship to the person whose
conduct needs to be controlled or to the foreseeable victim of
that conduct. (Tarasoff v. Regents of University of Cal. (1976)
17 Cal.3d 425, 435.)
In Tarasoff, the California Supreme Court held that when a
psychotherapist "determines, or pursuant to the standards of
Ýthe] profession should determine, that Ýtheir] patient presents
(more)
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a serious danger of violence to another, Ýthe psychotherapist]
incurs an obligation to use reasonable care to protect the
intended victim against such danger." (17 Cal.3d 425, 431.) To
discharge their duty, psychotherapists may be required to "warn
the intended victim or others likely to apprise the victim of
the danger, to notify the police, or to take whatever other
steps are reasonably necessary under the circumstances." (Id.)
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In 1985, AB 1133 (McAlister, Ch. 737, Stats. 1985) codified both
the psychotherapists' duty and one method to discharge that
duty. Specifically, AB 1133 stated that a psychotherapist's
duty to warn and protect shall be discharged upon "making
reasonable efforts to communicate the Ýpatient's] threat to the
victim or victims and to a law enforcement agency." (Civ. Code
Section 43.92.) AB 733 (Nation, Ch. 136, Stats. of 2006)
altered this immunity provision to clarify, by implication, that
a psychotherapist may fulfill his or her duty by taking
reasonable actions "other" than notifying a potential victim and
law enforcement of a patient's threatened violent behavior.
This bill seeks to further clarify psychotherapists' duty under
the above circumstance by changing the duty referred to by the
statute from a "duty to warn and protect" to a "duty to
protect."
CHANGES TO EXISTING LAW
Existing case law provides that generally "one person oweÝs] no
duty to control the conduct of another . . . nor to warn those
endangered by such conduct . . . ÝC]ourts have carved out an
exception to Ýthat] rule in cases in which the defendant stands
in some special relationship to either the person whose conduct
needs to be controlled or in a relationship to the foreseeable
victim of that conduct . . ." ÝTarasoff v. Regents of University
of Cal. (1976) 17 Cal.3d 425, 435.]
Existing law states that there shall be no liability on the part
of, and no cause of action shall arise against, a
psychotherapist for 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. (Civ. Code Sec. 43.92 (a).)
Existing law provides for immunity from liability if a
psychotherapist 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. (Civ. Code
Sec. 43.92(b).)
This bill would remove references to a duty to warn in the above
language.
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COMMENT
1. Stated need for the bill
According to the author:
In a circumstance where a patient makes a serious threat of
physical violence against a reasonably identifiable victim to
their therapist, the therapist will have immunity from
liability if he or she makes reasonable efforts to communicate
the threat to the victim and to a law enforcement agency.
Current law essentially provides a "safe harbor" for
therapists that do both of these things, but it does not
require the therapist to take such action. If the therapist
takes action other than notifying the potential victim and law
enforcement, they will be held liable if it is proven that the
therapist did not make reasonable efforts to protect the
victim. Under existing law, the statute that refers to this
responsibility (43.92 of the Civil Code) refers to the duty as
a "duty to warn and protect."
The language in Section 43.92 of the Civil Code that states a
psychotherapist's duty as a "duty to warn and protect" is
Ýneither] consistent with the language in the decision in
Tarasoff v. University of California nor the language in the
CACI jury instructions which both state the duty as a "duty to
protect." This creates unnecessary inconsistency, which can
cause confusion and uncertainty to the actual duty of a
psychotherapist in such cases.
This bill renames the duty of a psychotherapist from a "duty
to warn and protect" to a "duty to protect," so that it
reflects and conforms with the changes made in 2007 to the
Judicial Council of California Jury Instructions, Section
503A, which properly renamed the duty to a "duty to protect"
and eliminated its prior reference to a "duty to warn." These
changes are consistent with the duty created in the ÝTarasoff
case].
2. Would this bill add consistency or further confusion?
Under existing law, psychotherapists are generally immune from
liability for failing to warn of and protect against a patient's
threatened or actual violent behavior except where the patient
has communicated a serious threat of physical violence against a
reasonably identifiable victim or victims. If that circumstance
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arises, the psychotherapist also has immunity if he or she
discharges the "duty to warn and protect" by making reasonable
efforts to communicate the threat to the victim or victims and
to a law enforcement agency. To address concerns that the
language of those immunity provisions creates confusion about
whether or not a warning is required, this bill would rename the
referenced duty from "duty to warn and protect" to "duty to
protect."
According to the sponsor, the California Association of Marriage
and Family Therapists (CAMFT), "this bill does not affect public
safety, or change how the duty is to be discharged if a
therapist is seeking the safe harbor (immunity from liability)
provided by ÝCivil Code Sec. 43.92(b)]. In other words, the
duty to protect is discharged, and the therapist is immune from
liability, if the therapist, under limited circumstances
specified in ÝCivil Code Sec. 43.92(a)], makes reasonable
efforts to communicate a patient's serious threat of physical
violence to the intended victim and to a law enforcement agency.
The primary reason to correctly name the duty imposed upon
psychotherapists is so that there is no confusion as to what the
actual duty is under these dangerous patient situations." Staff
notes that the degree of confusion caused by the current
language is unclear - the sponsor has been unable to produce any
published cases or other examples where the language at issue
was misconstrued since it was last amended in 2006 by AB 733
(Nation, Ch. 136, Stats. 2006). Similarly, this Committee's
analysis for AB 733, which modified the existing immunity
language to address similar concerns, noted:
The California Association of Marriage and Family
Therapists, sponsor, is very concerned that actions other
than warning both the victim and a law enforcement agency
could result in a finding of negligence. The sponsor has
not produced any published cases which demonstrate such a
finding by a court. Additionally, no court has commented on
any ambiguity present in the existing language. AB 733's
essential return to Tarasoff raises questions about the
other actions that may be taken, and the effect upon current
and future litigation.
Considering the lack of documentation as to any court
erroneously interpreting existing law, should the Committee
decide to approve this bill, it is essential that the
clarification provided by this bill not generate new confusion
for either the courts or psychotherapists.
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a. Effect of reinforcing that psychotherapists may not need to
warn victims
As stated above, Tarasoff requires a psychotherapist to use
reasonable care to protect the intended victim against a
patient's threat of violent behavior. (17 Cal. 3d 425, 431.)
Tarasoff further provided that "discharge of this duty may
require the therapist to take one or more of various steps,
depending upon the nature of the case." (Id.) One way to
satisfy that duty, which is codified in existing law, is for
the psychotherapist to notify both the victim and law
enforcement of the threat. If reasonable efforts are made to
communicate the threat to those parties, the psychotherapist
has immunity under Section 43.92(b).
While this bill seeks to reinforce that a psychotherapist does
not have to warn a potential victim, any psychotherapist that
elects not to follow the immunity provision would have no
assurance that the alternative actions they elect to use will
fulfill their duty, thus, leaving the decision as to the
appropriateness of their actions to be litigated in court.
Those individuals should be cognizant that those "other" steps
may result in liability if a court doesn't agree with the
chosen course of action.
For example: A patient could communicate to their
psychotherapist that they intend to kill their former spouse.
The psychotherapist, believing the threat to be credible,
realizes that they have a duty to protect that spouse.
Realizing that the patient lives in California, and their
former spouse lives in Nevada, the psychotherapist decides to
let the air out of the patient's tires to prevent the patient
from driving to Nevada. The patient then gets on a bus to
Nevada and severely injures their former spouse. At trial,
the psychotherapist contends that letting the air out of the
patient's tires fulfilled his or her duty to the victim. The
parties must then litigate whether the psychotherapist
satisfied his or her duty to protect the victim by taking that
alternate action. Even if those steps are found to be
reasonable, litigation over that issue could be costly and
time consuming. As a result, while this bill would reinforce
the ability to take alternate actions, psychotherapists who
elect to take those actions should be fully aware of the
potential implications of those choices.
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b. Unclear effect of striking "warn" from immunity language
Staff notes that the intent of this bill is to not
substantively change the underlying psychotherapist immunity
provision but to simply rename the duty referenced by the
provision. Although the language in that provision does
"name" the duty, it also arguably provides the circumstances
under which a psychotherapist actually has immunity.
For example, the existing provision provides immunity for the
psychotherapist's failing to "warn of and protect from" a
patient's actual or threatened violent behavior. Striking the
words "warn of" results in an immunity that only applies to a
psychotherapist's failure to protect - although warning is a
type of protection, it is unclear whether the striking of that
language could be misconstrued to no longer provide immunity
for claims solely alleging a failure to warn. To the extent
that it is possible for the striking of the word "warn" to be
misconstrued by a court, staff notes that the intent language
suggested in Comment 3 would appear to clearly state the
legislative intent not to have that impact.
c. Jury instructions
As noted by the author, the current jury instruction relating
to psychotherapists was updated following the enactment of AB
733 (Nation, 2006), which clarified that a psychotherapist may
discharge his or her duty by taking steps other than warning
the victim and law enforcement. The author asserts that by
renaming the duty in statute, this bill would reflect and
conform to the "changes made in 2007 to the Judicial Council
of California Jury Instructions, which properly renamed the
duty to a 'duty to protect' . . ."
It should be noted that jury instructions must reflect
existing law, otherwise any jury that receives the instruction
would be told incorrect information - a jury instruction
should not set a precedent that must then be codified by the
Legislature because that would imply that there was not
sufficient authority for the original instruction. In this
circumstance, the jury instruction arguably reflects the
changes made by AB 733, which already clarified that
psychotherapists can take other steps to warn of a threat.
That clarified jury instruction raises further questions about
the level of confusion since it already names the duty of the
psychotherapist in the fashion desired by the sponsor - if
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juries and courts are not confused as to the duty of the
psychotherapist, it is unclear who else is reading statutes
and incorrectly interpreting the obligations of a
psychotherapist.
3. Intent language to avoid misinterpretation of this bill
Should the Committee determine that the proposed clarification
is, in fact, appropriate, the following amendment would ensure
that the renaming of the duty is not construed to be a
substantive change in law. The following intent language also
ensures that the change does not have a retroactive impact -
that impact is unnecessary and raises significant concern due to
theoretically impacting pending litigation.
Suggested amendment:
On page 2, line 17 after the period, insert:
(c) It is the intent of the Legislature that this Act only
change the name of the duty referenced in Section 43.92 of the
Civil Code from a duty to warn and protect to a duty to
protect. Nothing in this act shall be construed to be a
substantive change to Section 43.92 of Civil Code, nor shall
any duty of a psychotherapist be modified as a result of
changing the wording in that Section.
(d) It is the intent of the Legislature that a court
interpret Section 43.92 of the Civil Code, as amended by this
Act, in a manner consistent with the interpretation of Section
43.92 of the Civil Code as that Section read prior to January
1, 2013.
Support : California Psychological Association
Opposition : None Known
HISTORY
Source : California Association of Marriage and Family
Therapists
Related Pending Legislation : None Known
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Prior Legislation :
AB 733 (Nation, Ch. 136, Stats. 2006), See Background.
AB 1133 (McAlister, Ch. 737, Stats. 1985), See Background.
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