4 Dev. Mental Health L. 1 (1984)

handle is hein.journals/dvmnhlt4 and id is 1 raw text is: A Quarterly Publication of the Institute of Law, Psychiatry & Public Policy at the University of Virginia
Developments in
Mental Health Law
Box 100, Blue Ridge Hospital, Charlottesville, VA 22901 (804) 924-5435  Vol.4, Nos. 1-2  Jan.-June 1984
A Psychotherapist's Ciminal Liability for
Failing to Inform on Patients
by VMs J. Spaulding
Beyond Tarasoff Liability

The Tarasoff doctrine imposes a com-
mon law tort duty on a psychotherapist
to warn identifiable third parides of a
foreseeable risk of injury at the patient's
hands. Derived from the California
Supreme Court's 1976 decision, Tara-
soff v. Regents of the University of
Caifoma,1 the doctrine recently has
been expanded by that court explicitly
to require the psychotherapist to exer-
cise reasonable professional skill in
ascertaining the extent of the risk and
to impose civil liability for psychiatric
harm to certain bystanders who observe
the patient physically injuring the vic-
tim.2 While a majority of state appellate
courts have yet to consider whether
state common law imposes such a duty,
a quickly increasing number of courts
have decided to adopt the Tarasoff
doctrine' or to reject it.4
The conclusion of the Tarasoff court
that the protective privilege ends where
the public peril begins,5 reflects a judi-
cial willingness to sacrifice the benefits
of psychotherapy that depend on con-
fidentiality, if in fact they do, where
physical harm to a party outside the
therapeutic relationship might be pre-
vented. A similar preference for public
safety over confidentiality may be found
in state laws which compel an attorney
to breach confidentiality to report the
client's intent to commit any crime. The

attorneys reporting duty addresses non-
violent victinless crimes, as well as the
kind that the Tarasoff doctrine is
designed to interdict. On the other hand,
the psychotherapist's duty under the
doctrine includes not only reporting the
patient's articulated intent, but exercis-
ing reasonable professional skill to pre-
dict the patient's future conduct. In
either the case of the disciplinary rules
of the legal profession or the tort duties
of the mental health profession, the duty
is forward-looking, with the purpose of
preventing criminal conduct, not pun-
ishing it.

Would that strong policy in favor of
such disclosures, regardless of the cost
to the professional relationship, extend
to the prosecution of psychotherapists
for failing to disclose past criminal con-
duct by patients? On this question the
courts, in contrast to the controversy
over civil liability which followed the
Tarasoffdecision, have been silent. This
silence is of interest because in many
jurisdictions psychotherapists at least in
theory might be prosecuted for com-
mon law misprision of felony or violation
of a reporting statute. And while it is
Continued on page 2

In the Virginia General Assembly- 1984

The 1984 Virginia General Assembly
considered more legislation concerning
the rights of persons with mental dis-
abilities than any previous meeting of
this state's legislature. Two key bills, one
revamping civil commitment proce-
dures and the other advancing the rights
of disabled persons in employment,
education, public housing and transpor-
tation, and other areas, each passed the
House of Delegates, only to be held over
in a Senate committee for reconsider-
ation in 1985. Legislation regarding the
rights of residents in board and care
facilities was enacted.

The Vr nians with Disabil-
ities Act
Described in the previous issue of this
newsletter [3 Developments in Mental
Health Law 29 (1983)], this bill (House
Bill 817) had passed the House of Dele-
gates on February 12 by a vote of 96-
1, before a campaign was mounted
against it, led by the Virginia Chamber
of Commerce.
The bill's critics claimed that provi-
sions designed to guarantee equal
employment opportunity would prove
more costly than supporting disabled
persons on welfare. Local government
Continued on page 3

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