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91 Ky. L.J. 457 (2002-2003)
Dangerous Patients: An Exception to the Federal Psychotherapist-Patient Privilege

handle is hein.journals/kentlj91 and id is 471 raw text is: Dangerous Patients: An Exception to the Federal Psychotherapist-Patient Privilege BY HUSTON COMBS* INTRODUCTION n 2000, the Sixth Circuit in United States v. Hayes' declined to establish a dangerous patient exception to the federal psycho- therapist-patient privilege in criminal prosecutions. Coupled with the psychotherapist's duty to warn, as first recognized in Tarasoff v. Regents of the University of California2 and now adopted in a majority of states,3 this holding leads to the seemingly paradoxical result of requiring a psychotherapist to warn third parties of potential violence while excluding from evidence in criminal proceedings all psychotherapist-patient privileged communications. As in Hayes, privileged communications may be the only evidence of a criminal offense.4 Suppressing the confidential communications may therefore effectively guarantee summary judgment for the defendant during prosecution for unrealized threats. Likewise, if a patient asserts the psychotherapist-patient privilege during prosecution for a committed act of violence, suppression of privileged patient communication greatly thwarts * J.D. expected 2003, University of Kentucky. 'United States v. Hayes, 227 F.3d 578 (6th Cir. 2000) (holding that there is no dangerous patient exception to the psychotherapist-patient privilege under FED. R. EVID. 501). 2 Tarasoffv. Regents of the Univ. of Cal., 529 P.2d 553 (Cal. 1974) (holding that a psychotherapist has the duty to use reasonable care to give threatened persons such warnings as are essential to avert foreseeable danger arising from his patient's condition or treatment). ' See George C. Harris, The Dangerous Patient Exception to the Psycho- therapist-Patient Privilege: The TarasoffDuty and the Jaffee Footnote, 74 WASH. L. REv. 33, 47 (1999). 4 The grand jury indictment in Hayes was based on three counts of statements by Hayes to psychotherapists threatening the life of a federal official. Hayes, 227 F.3d at 581.

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