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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
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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