BILL ANALYSIS �
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 1134|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: SB 1134
Author: Yee (D)
Amended: 5/8/12
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 5/1/12
AYES: Evans, Harman, Blakeslee, Corbett, Leno
SUBJECT : Persons of unsound mind: psychotherapist duty
to protect
SOURCE : California Association of Marriage and Family
Therapists
DIGEST : This bill deletes from the 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", as specified.
ANALYSIS : 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
CONTINUED
SB 1134
Page
2
�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,
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, Chapter 737, Statutes
of 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 �patient's] threat to the victim or victims
and to a law enforcement agency." (Civil Code Section
43.92.) AB 733 (Nation, Chapter 136, Statutes 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 bill seeks to further clarify psychotherapists' duty
under the above circumstance by changing the duty referred
to by the statute from a "duty to warn and protect" to a
"duty to protect."
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 California (1976) 17
Cal.3d 425, 435]
Existing law 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
CONTINUED
SB 1134
Page
3
except where the patient has communicated to the
psychotherapist a serious threat of physical violence
against a reasonably identifiable victim or victims.
(Civil Code (CIV) Section 43.92 (a))
Existing law provides for immunity from liability if a
psychotherapist discharges his/her duty to warn and protect
by making reasonable efforts to communicate the threat to
the victim(s) and to a law enforcement agency. (CIV
Section 43.92(b))
This bill removes references to a duty to warn in the above
language.
This bill states that it is the intent of the Legislature
that the amendments made by the act only change the name of
the duty referenced in this section (CIV Section 43.92)
from a duty to warn and protect to a duty to protect.
Nothing in this section shall be construed to be a
substantive change, and any duty of a psychotherapist shall
not me modified as a result of changing the wording in this
section. This bill 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/8/12)
California Association of Marriage and Family Therapists
(source)
California Psychological Association
ARGUMENTS IN SUPPORT : 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
CONTINUED
SB 1134
Page
4
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."
The language in Section 43.92 of the Civil Code that
states a psychotherapist's duty as a "duty to warn and
protect" is �neither] 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 �Tarasoff case].
RJG:mw 5/9/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED