BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 733|
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THIRD READING
Bill No: AB 733
Author: Nation (D)
Amended: 6/5/06 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/13/06
AYES: Dunn, Morrow, Escutia, Harman, Kuehl
ASSEMBLY FLOOR : 77-0, 5/16/05 (Consent) - See last page
for vote
SUBJECT : Psychotherapists: duty to warn
SOURCE : California Association of Marriage and Family
Therapists
DIGEST : This bill clarifies 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 clarifies that a
psychotherapist may discharge their duty under case law by
taking other reasonable steps.
ANALYSIS : 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
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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."
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
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.
This bill restates 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.
Prior legislation . AB 1133 (McAlister), Chapter 737,
Statutes of 1985, codified the limited situations where a
psychotherapist has a duty to a potential victim and one
way to discharge that duty.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/15/06)
California Association of Marriage and Family Therapists
(source)
National Association of Social Workers
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ARGUMENTS IN SUPPORT : The bill's sponsor, California
Association of Marriage and Family Therapists, 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 (McAlister), 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 this bill is necessary
to clarify that other reasonable actions may be taken to
discharge their duty, as provided in the Tarasoff decision
itself.
ASSEMBLY FLOOR :
AYES: Aghazarian, Arambula, Baca, Bass, Benoit, Berg,
Bermudez, Blakeslee, Bogh, Calderon, Canciamilla, Chan,
Chavez, Chu, Cogdill, Cohn, Coto, Daucher, De La Torre,
DeVore, Dymally, Emmerson, Evans, Frommer, Garcia,
Goldberg, Hancock, Harman, Haynes, Jerome Horton, Shirley
Horton, Houston, Huff, Jones, Karnette, Keene, Klehs,
Koretz, La Malfa, La Suer, Laird, Leno, Leslie, Levine,
Lieber, Matthews, Maze, McCarthy, Montanez, Mountjoy,
Mullin, Nakanishi, Nation, Nava, Negrete McLeod, Niello,
Parra, Pavley, Plescia, Richman, Ridley-Thomas, Sharon
Runner, Ruskin, Saldana, Salinas, Spitzer, Strickland,
Torrico, Tran, Umberg, Vargas, Villines, Walters, Wolk,
Wyland, Yee, Nunez
NO VOTE RECORDED: Gordon, Liu, Oropeza
RJG:mel 6/15/06 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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