BILL ANALYSIS
AB 733
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Date of Hearing: May 3, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 733 (Nation) - As Introduced: February 17, 2005
PROPOSED CONSENT (As Proposed To Be Amended)
SUBJECT : PSYCHOTHERAPISTS: DUTY TO WARN
KEY ISSUE : SHOULD A PSYCHOTHERAPISTS' DUTY TO WARN BE
CLARIFIED TO LIMIT THE DUTY SOLELY TO COMMUNICATIONS BETWEEN THE
PSYCHOTHERAPIST AND THE PATIENT?
SYNOPSIS
This bill, sponsored by the California Association of Marriage
and Family Therapists, seeks to clarify and affirm the original
intent of the psychotherapists' duty to warn. The sponsor seeks
to overturn the recent appellate holding in Ewing v. Goldstein ,
which concluded that the threat of physical violence
communicated to a therapist by a patient's family member, rather
than the patient, can also trigger the duty to warn. The
sponsor believes that the Ewing decision is at odds with current
law, is unworkable in practice, and will have an adverse effect
on the ability of psychotherapists to treat patients
effectively. The bill also provides guidance to
psychotherapists who receive third party communication regarding
a patient's threat of violence. There is no opposition.
SUMMARY : Clarifies that a psychotherapist's duty to warn others
of a patients' violent threats is limited to patient
communications and does not apply to communications by others.
Specifically, this bill :
1)Reaffirms current law limiting a psychotherapists' "duty to
warn" of potential violent behavior, by clarifying this duty
does not apply to third-party communications.
2)Provides guidance to psychotherapists as to when to consider
reporting third party communications about a patient's
potential for violence.
EXISTING LAW:
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1)Provides that psychotherapists have immunity from liability
for failure to warn of violent behavior, except when a patient
communicates a serious threat of physical violence against a
reasonably identifiable victim or victims. (Civil Code
section 43.92.)
2)Provides for a psychotherapist-patient privilege whereby the
patient, as holder of the privilege, may refuse to disclose or
prevent another from disclosing a confidential communication
between himself or herself and his or her psychotherapist.
(Evidence Code section 1014.)
FISCAL EFFECT : As currently in print, this bill is keyed
non-fiscal.
COMMENTS : According to the author, AB 733 would overturn a
recent case by making two changes to the law on
psychotherapists' immunity in order to clarify when the duty to
warn is triggered and what affirmative acts the psychotherapist
is encouraged to carry out.
In support of the bill, the author writes:
Existing law provides that no monetary liability and no
cause of action shall arise against a psychotherapist for
failing to warn and protect from a patient's threatened
violent behavior, except where the patient has communicated
to the psychotherapist a serious threat of physical
violence against a reasonably identifiable victim or
victims.
Following the recent appellate decision, Ewing v.
Goldstein, which would extend this exception to
communications to the therapist made by family members, the
current state of the law is an unworkable amalgam of
conflicting legal opinions and statutes. We believe that
legislation is needed to clarify the legal responsibilities
of psychotherapists in such situations. We believe that AB
733 will help in this regard.
Bill Would Overturn Recent Court Ruling In Ewing v. Goldstein.
This bill seeks to overturn Ewing v. Goldstein, 120 Cal.App.4th
807 (2004). In Ewing, the court held that a threat of violence
communicated by a family member, as opposed to a patient, would
trigger a duty to warn the potential victim and law enforcement
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officials. The California Association of Marriage and Family
Therapists seeks to reverse the Ewing court's expansion of a
psychotherapist's so-called "duty to warn" by providing that it
is triggered only when the threat of violence is communicated by
the patient "himself or herself."
The sponsor states that the Ewing decision is unworkable because
it creates a tremendous risk with no clear guidelines on how to
meet the duty that is imposed. Indeed, therapists have no way
to confirm whether the communication is accurate, is made by a
family member, or whether the family member is acting
maliciously or in the best interest of the patient. The Ewing
court also neglected to indicate what degree of familial
relationship is necessary to trigger the duty.
The sponsor also believes that the holding in Ewing will have
adverse consequences on the daily practices of many
psychotherapists. The sponsor writes that, among other things
"fear of liability may cause therapists to err on the side of
over predicting dangerousness?or even causing them to avoid
treating potentially dangerous patients altogether?or to
single-mindedly focus on a patient's 'dangerousness,' at the
expense of treating his other mental health needs."
Confidentiality and trust, which are essential to the effective
treatment of the mentally ill, may also be adversely affected.
The sponsor adds that "imposing a duty on doctors to disclose
patient threats to potential victims would greatly impair
treatment ? and will hinder the patient's ability fully to trust
the therapist."
As the sponsor notes, Ewing places therapists "in an untenable
dilemma: if he or she notifies law enforcement of the threat
communicated by the family member, he may be sued by the patient
for breach of confidentiality. If he does not report, he has
breached a court-created 'duty.'"
Bill Would Restore Original Intent Of Psychotherapists'
Immunity . The psychotherapists' immunity from liability was
originally adopted to avoid psychotherapists from being
inappropriately held liable for failing to predict and warn of
potential violence. In the wake of the well-known decisions of
Tarasoff v. Regents of University of California, 17 Cal.3d 425
(1976) and Hedlund v. Superior Court 43 Cal.3d 695 (1983), the
Legislature provided psychotherapists with limited immunity.
Current law imposes a duty to warn on therapists only when the
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patient communicates an actual threat of violence against an
identified victim.
The sponsor notes that "for almost thirty years psychologists in
California have been aware of the duty to warn articulated in
Tarasoff. Since its enactment psychologists have relied on the
immunity subsequently provided in Civil Code section 43.92 for
warning of a patient's dangerousness, and have relied on the
clarity of the trigger for such a warning. Prior to the Ewing
decision, it was clear to psychologists that the duty to warn
arose only when a patient made a serious threat of physical
violence. That certainty is now lost."
The Bill Creates A Professional Standard When Psychotherapists
Receive Third Party Information. The bill, as proposed to be
amended, provides psychotherapists with guidance, should they
receive third party communication regarding a patient's threat
of violence. The psychotherapist is encouraged, but not
required to, contact the patient to assess whether or not the
patient poses a serious threat of physical violence against a
reasonably identifiable victim.
Author's Proposed Amendments: In order to further the purpose
of the bill, the author has judiciously proposed the following
amendments.
Amendment 1:
These amendments only apply to actions filed on or after January
1, 2006.
Amendment 2:
(c) Notwithstanding subdivision (a), when a patient's threat has
been communicated to the therapist by a third party, the
therapist is encouraged to, but is not required to, contact the
patient to the extent that the therapist reasonably believes is
necessary to assess whether or not the patient poses a serious
threat of physical violence against a reasonably identifiable
victim or victims.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 733
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California Association of Marriage and Family Therapists
(sponsor)
California Medical Association
California Mental Health Directors Association
California Psychological Association
California Society for Clinical Social Work
Fresno Area Psychological Association
Inland Psychological Association
Napa-Solano Psychological Association
San Mateo Psychological Association
Santa Clara County Psychological Association
Service Employees International Union
Numerous individuals
Opposition
None on file.
Analysis Prepared by : Cynthia Alvillar / JUD. / (916) 319-2334