BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 733 A
Assembly Member Nation B
As Amended June 5, 2006
Hearing Date: June 13, 2006 7
Civil Code 3
BCP:cjt 3
SUBJECT
Psychotherapists: Duty to Warn
DESCRIPTION
This bill would clarify the existing statute by specifying
the two steps, notifying both the potential victim and a
law enforcement agency, which a psychotherapist may take to
discharge their duty to a potential victim of a patient's
communicated serious threat of violence. By implication,
this bill would clarify that a psychotherapist may
discharge their duty under case law by taking other
reasonable steps.
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 [the] profession should determine, that [their] patient
presents a serious danger of violence to another, [the
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,
(more)
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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 (Chapter 737, McAlister) 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 [patient's] threat to the victim or victims and to a
law enforcement agency." [Civ. Code 43.92.]
As amended June 5, 2006, this bill would, by implication
clarify that a psychotherapist may fulfill that duty by
taking reasonable actions "other" than notifying a
potential victim and law enforcement of a patient's
threatened violent behavior. This clarification is based
upon the sponsor's belief that California should return to
Tarasoff's allowance for alternate actions by a
psychotherapist.
CHANGES TO EXISTING LAW
Existing case law provides that generally "one person
owe[s] no duty to control the conduct of another . . . nor
to warn those endangered by such conduct . . . [C]ourts
have carved out an exception to [that] 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.]
Existing law states that psychotherapists have a duty to
warn and protect when the "patient himself or herself
communicated to the psychotherapist a serious threat of
physical violence against a reasonably identifiable victim
or victims." [Civ. Code 43.92.]
Existing case law includes communications directly from the
patient and the "patient's immediate family [when the
communication] is shared for the purpose of facilitating
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and furthering the patient's treatment." [Ewing v.
Goldstein (2004) 120 Cal. App. 4th 807, 817.]
Existing law states that the psychotherapist's duty to warn
and protect shall be discharged by making reasonable
efforts to communicate the threat to the victim and to a
law enforcement agency. [Civ. Code 43.92(b).]
This bill would restate that reasonable efforts to
communicate the threat to the victim and a law enforcement
agency discharges a psychotherapist's duty to warn and
protect. By implication, the corollary effect would be to
reiterate that under Tarasoff there are alternate methods
for discharging a psychotherapist's duty once it arises.
COMMENT
1. Stated need for the bill
The California Association of Marriage and Family
Therapists, sponsor, brings this narrowed version of the
bill to address what they perceive as a lack of clarity
in current law. Current law outlines one situation where
psychotherapists have a duty to a third party and the way
to discharge that duty. The sponsor maintains that the
purpose of AB 1133, which enacted the section in
question, was not to allow only one method for
discharging a psychotherapist's duty to warn and protect
a potential victim, but instead to provide an option that
would provide therapists with a clear immunity from
actions. However, both the Judicial Council jury
instruction (1-500 CACI 503), and Matthew Bender's
California Forms of Pleading and Practice state that a
psychotherapist is negligent if the duty is not
discharged as specifically provided in the statute.
Accordingly, the sponsor states that AB 733 is necessary
to clarify that other reasonable actions may be taken to
discharge their duty, as provided in the Tarasoff
decision itself.
2. Current liability for psychotherapists when faced with
a patient communication of a serious threat of physical
violence against a reasonably identifiable victim
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The sponsor's asserted lack of clarity as to actions that
a psychotherapist may take when faced with a threat
against a reasonably identifiable victim rests in Civil
Code Section 43.92, enacted by AB 1133. According to
Ewing v. Goldstein (2004) 120 Cal. App. 4th 807, 815-16,
the intent of AB 1133 was to limit a psychotherapists'
liability to instances where the patient has communicated
an actual threat, and to clarify that a psychotherapist
cannot be liable for failure to predict a patient's
violent behavior.
A. Current statutory and case law
Civil Code Section 43.92 (a) states an exception to
the general rule that individuals have no duty to
protect third parties from the actions of another.
That duty arises for psychotherapists when "the
patient has communicated to the psychotherapist a
serious threat of physical violence against a
reasonably identifiable victim or victims." Once that
duty is triggered, failure to satisfy that duty
results in a finding of negligence. Section 43.92 (b)
states one specific way that an established "duty to
warn and protect" shall be discharged: "making
reasonable efforts to communicate the threat to the
victim or victims and to a law enforcement agency."
The subdivision is silent as to whether that is the
only way to discharge the psychotherapist's duty when
raised.
Case law for the most part is equally silent; the
majority of published cases concern whether the duty
to warn and protect is in fact triggered. The only
case of note, Ewing v. Northridge Hosp. Medical Center
(2004) 120 Cal. App. 4th 1289, 1292, states that "when
a patient has 'communicated to the psychotherapist a
serious threat of physical violence against a
reasonably identifiable victim,' the psychotherapist
must take reasonable steps to warn the victim and a
law enforcement agency of the threat." [Citations
omitted.] Presumably that case based its findings on
both Civ. Code Section 43.92 and the Judicial
Council's jury instructions.
B. Judicial Council jury instructions
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The Judicial Council's jury instructions (1-500 CACI
503) require the psychotherapist to both warn the
victim and communicate the threat to law enforcement.
Specifically, the CACI instruction, which is the
official jury instruction for the State of California,
states that a psychotherapist is negligent for failure
to warn if they do not "make reasonable efforts to
warn [the victim] and a law enforcement agency about
the threat." [1-500 CACI 503.] Thus, that jury
instruction would result in a finding of negligence
for any action taken by the psychotherapist that does
not consist of both warning the victim and
communicating the threat to law enforcement.
For example, during the course of sessions with their
psychotherapist, a patient could state their intent to
kill a former spouse's new husband. The
psychotherapist, believing the threat to be a serious
threat of physical violence, decides that she has duty
to protect that individual. The psychotherapist warns
the potential victim of the threat and hospitalizes
the patient. After several weeks of hospitalization,
the patient is released and immediately kills their
former spouse's husband. Under the existing jury
instruction, the psychotherapist would be negligent
due to her failure to warn both the potential victim
and a law enforcement agency of the threat.
The sponsor believes that the above jury instruction
is in error and does not reflect Tarasoff. In the
above situation, the sponsor believes that a jury
should evaluate whether the steps taken by the
psychotherapist to protect the intended victim were
reasonable. While psychotherapists would be wise to
make a reasonable attempt to warn both the victim and
law enforcement of any serious threat by a patient, AB
733 would allow a jury to decide whether alternative
actions are reasonable and therefore immune from
liability.
3. Implications of the proposed change
The California Association of Marriage and Family
Therapists, sponsor, is very concerned that actions other
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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.
A. Effect of allowing alternative actions and returning
to Tarasoff
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.] Unlike the current statute,
Tarasoff states 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.]
The Tarasoff court, as an example which was codified
by AB 1133, stated that discharge of the duty may
require the psychotherapist to notify both the victim
and law enforcement of the threat. While AB 733
preserves the ability of a psychotherapist to take
those two actions, the bill seeks to return to
Tarasoff's allowance for alternative steps that a
psychotherapist may take to avoid liability. However,
psychotherapists would have no assurance that
alternative actions, other than notifying both law
enforcement and the victim, would discharge their
duty. That determination will be made by the trier of
fact.
Accordingly, psychotherapists who take alternative
actions would have to affirmatively demonstrate that
those actions fulfilled their duty. This departure
from the current bright-line rule could raise the
problems discussed below.
B. Impact upon the courts
As stated previously, the current Judicial Council
jury instruction provides a clear test for when a
psychotherapist is negligent for failing to discharge
their duty to protect and warn a potential victim from
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a patient's violent behavior. Once the duty is
established, the psychotherapist must take two
specific actions to discharge that duty. Failure to
discharge the duty necessarily results in a finding of
negligence.
AB 733 would remove that clarity and instead require
the finder of fact to evaluate whether the
psychotherapist's "other" actions discharged their
duty to the victim. The result of this proposed
change would be the litigation of every "other" action
taken by a psychotherapist which allegedly discharged
their duty to the victim. This would result in longer
and more expensive trials with the introduction of
even more experts, and could make it more difficult to
find a psychotherapist liable for breaching their duty
to the victim of a patient's violent behavior.
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 their duty to the
victim. The parties must then litigate whether the
psychotherapist satisfied their duty to protect the
victim by taking that alternate action. Under current
law, the psychotherapist would be negligent, but AB
733 would allow the finder of fact to evaluate whether
their "other" action, in fact, discharged their duty.
Accordingly, AB 733 would encourage any
psychotherapist facing charges of negligence for
failure to protect a victim to litigate whether their
"other" actions discharged their duty to the victim.
That litigation would lengthen trial times, increase
legal costs and potentially allow some psychologists
to avoid liability. However, that circumstance is
consistent with the Tarasoff holding. It is what it
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is.
4. Language finding "no monetary liability on the part
of, and no cause of action shall rise against" mirrors
existing law
The author's recent amendments to the bill state that a
psychotherapist "shall [have] no monetary liability on
the part of, and no cause of action shall rise against" a
psychotherapist when they make reasonable efforts to
communicate a threat to a reasonably identifiable victim
or victims and to a law enforcement agency. This
immunity language tracks existing law and only applies in
cases where the psychotherapist has a duty to warn and
protect a reasonably identifiable victim from a serious
threat of physical violence, as evidenced by the bill's
language "under the limited circumstances specified
above."
Accordingly, the amended language proposed by AB 733
would not substantively change or expand the immunity
currently enjoyed by psychotherapists who warn both the
victim and law enforcement. As discussed above, a
psychotherapist would have to demonstrate that any
alternative actions taken to discharge their duty to the
victim were reasonable.
5. Consumer Attorneys of California (CAOC) neutral
CAOC is neutral on the bill as amended.
Support: National Association of Social Workers (NASW-CA)
Opposition: None Known
HISTORY
Source: The California Association of Marriage and Family
Therapists
Related Pending Legislation: None Known
Prior Legislation: AB 1133 (Chapter 737, Statutes of
1985), codified the limited situations where
a psychotherapist has a duty to a potential
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victim and one way to discharge that duty.
Prior Vote (on a prior version of the bill)
Assembly Judiciary Committee (9 Ayes, 0
Noes)
Assembly Floor (77
Ayes, 0 Noes)
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