BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1134
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          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."  








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          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.)
           








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          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."  









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            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 








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