BILL ANALYSIS �
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 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.)
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
�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, 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 �patient'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
�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].
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 �Civil 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 �Civil 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
SB 1134
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