BILL ANALYSIS Ó SB 1134 Page 1 Date of Hearing: June 26, 2012 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair SB 1134 (Yee) - As Amended: May 8, 2012 PROPOSED CONSENT SENATE VOTE : 37-0 SUBJECT : Psychotherapist Duty to Protect KEY ISSUE : SHOULD THE PSYCHOTHERAPISTS' "DUTY TO WARN AND PROTECT" BE CLARIFIED? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS Existing law provides for general immunity for psychotherapists, 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 non-controversial bill simply deletes references of a "duty to warn ". SUMMARY : Seeks to further clarify a psychotherapist's duty to warn. Specifically, this bill : 1)Deletes from the existing immunity from monetary liability statute concerning a psychotherapist's "duty to warn and protect" of threatened violent behavior of a patient the phrase "duty to warn," thus keeping the term "duty to protect." 2)States that it is the intent of the Legislature that the amendments made by the bill only change the name of the duty from "a duty to warn and protect" to "a duty to protect." SB 1134 Page 2 3)States that nothing in this bill shall be construed to be a substantive change in law, and any duty of a psychotherapist shall not be modified as a result of changing the technical wording in this section. 4)States that it is the intent of the Legislature that a court interpret this section in a manner consistent with the interpretation of this section as it read prior to January 1, 2013. EXISTING LAW : 1)Provides that generally "one person oweİs] no duty to control the conduct of another . . . nor to warn those endangered by such conduct . . . İC]ourts have carved out an exception to İthat] 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 . . ." (Tarasoff v. Regents of University of Cal. (1976) 17 Cal.3d 425, 435.) 2)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. (Civil Code Sec. 43.92 (a).) 3)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. (Civil Code Sec. 43.92(b).) COMMENTS : 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.) SB 1134 Page 3 In Tarasoff, the California Supreme Court held that when a psychotherapist "determines, or pursuant to the standards of İthe] profession should determine, that İtheir] patient presents a serious danger of violence to another, İthe 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.) 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 İpatient's] threat to the victim or victims and to a law enforcement agency." (Civil 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 non-controversial bill simply further clarifies a psychotherapist's duty under the above circumstance by technically changing the duty referred to by the statute from a "duty to warn and protect" to a "duty to protect." 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." SB 1134 Page 4 The language in Section 43.92 of the Civil Code that states a psychotherapist's duty as a "duty to warn and protect" is İneither] 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 İTarasoff case]. 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 İCivil 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 İCivil 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." REGISTERED SUPPORT / OPPOSITION : Support California Association of Marriage and Family Therapists California Psychological Association Opposition None on file Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334 SB 1134 Page 5