Tarasoff v. Regents of the University of California
Supreme Court of California , 1974
13 Cal. 3d 177 (1974)
Vitaly TARASOFF et al., Plaintiffs and Appellants, v. The REGENTS OF the
UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents
No. S. F. 23042
Supreme Court of California
December 23, 1974
COUNSEL:
[**1]
George A. McKray, San Francisco, for plaintiffs and appellants.
Robert E. Cartwright, San Francisco, Floyd A. Demanes, Burlingame, William H.
Lally, Sacramento, Edward I. Pollock, Los Angeles, Leonard Sacks, Pico Rivera,
Stephen I. Zetterberg, Claremont, Sanford M. Gage, Beverly Hills, Robert O.
Angle and David R. Baum, amici curiae, for plaintiffs and appellants.
Evelle J. Younger, Atty. Gen., James E. Sabine, Asst. Atty. Gen., John M.
Morrison and Thomas K. McGuire, Deputy Attys. Gen., Hanna, Brophy, MacLean,
McAleer
& Jensen, James V. Burchell, San Francisco, Ericksen, Ericksen, Lynch
& Mackenroth, Ericksen, Ericksen, Lynch, Younger
& Mackenroth, Oakland, William R. Morton, Oakland, and Albert H. Sennett, San
Francisco, for
defendants and respondents.
OPINION BY: TOBRINER
OPINION:
[*554]
[***130]
In Bank
TOBRINER, Justice.
On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. n1 Plaintiffs,
Tatiana's parents, allege that two months earlier Poddar confided his intention
to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the Cowell
Memorial Hospital at the University of California at Berkeley. They allege that
on Moore's request, the campus police briefly detained
[**2] Poddar, but released him when he appeared rational. They further claim that
Dr. Harvey
[*555]
[***131] Powelson, Moore's superior, then directed that no further action be taken to
detain Poddar. No one warned Tatiana of her
peril.
-----------------------FOOTNOTE----------------------------
n1 The criminal prosecution stemming from this crime is reported in
People v. Poddar (1974) 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342.
--------------------FOOTNOTE END--------------------------
Concluding that these facts neither set forth
causes of action against the
therapists and policement involved, nor against the Regents of the University of
California as their employer, the superior court sustained defendants'
demurrers to plaintiffs' second amended complaints without leave to amend. n2
This appeal ensued.
-----------------------FOOTNOTE----------------------------
n2 The
therapist defendants include Dr. Moore, the psychologist who examined Poddar and decided
that Poddar should be committed; Dr. Gold and Dr. Yandell,
psychiatrists at Cowell Memorial Hospital who concurred in Moore's decision; and Dr.
Powelson, chief of the department of
psychiatry, who countermanded Moore's decision and directed that the staff take no action
to
confine Poddar. The police defendants include Officers Atkinson, Brownrigg and
Halleran, who detained Poddar briefly but released him; Chief Beall, who
received Moore's letter recommending that Poddar be confined; and Officer Teel,
who, along with Officer Atkinson, received Moore's oral communication
requesting detention of Poddar.
[**3]
--------------------FOOTNOTE END--------------------------
Plaintiffs' complaints predicate liability on two grounds: defendants'
failure to warn plaintiffs of the impending danger and their failure to use
reasonable care to bring about Poddar's
confinement pursuant to the Lanterman-Petris-Short Act (Welf.
& Inst.Code,
§ 5000ff.) Defendants, in turn, assert that they owed no
duty of
reasonable care to Tatiana and that they are
immune from suit under the California Tort Claims Act of 1963 (Gov.Code,
§ 810ff.).
We shall explain that defendant
therapists, merely because Tatiana herself was not their
patient, cannot escape liability for failing to exercise due care to
warn the endangered Tatiana or those who reasonably could have been expected to
notify her of her
peril. When a
doctor or a
psychotherapist, in the exercise of his professional skill and knowledge, determines, or should
determine, that a
warning is essential to avert danger arising from the medical or psychological
condition of his
patient, he incurs a legal
obligation to give that
warning. Primarily, the relationship between defendant
therapists and Poddar as their
patient imposes the described
duty to warn. We shall
[**4] point out that a second basis for liability lies in the fact that defendants'
bungled attempt to
confine Poddar may have deterred him from seeking further therapy and aggravated the
danger to Tatiana; having thus contributed to and partially created the danger,
defendants incur the ensuing obligation to give the
warning.
We reject defendants' asserted defense of governmental
immunity; no specific statutory provision shields them from liability for
failure to warn, and Government Code section 820.2 does not protect defendants' conduct as an
exercise of discretion. We conclude that plaintiffs' complaints state, or can
be amended to state, a
cause of action against defendants for negligent
failure to warn.
Defendants, however, may properly claim
immunity from liability for their failure to
confine Poddar. Government
Code section 856 bars imposition of liability upon defendant
therapists for their determination to refrain from detaining Poddar and Welfare and
Institutions Code section 5154 protects defendant
police officers from civil liability for releasing Poddar after his brief
confinement. We therefore conclude that plaintiffs cannot state a
cause of action for defendants' failure
[**5] to detain Poddar. Since plaintiffs base their claim to
punitive damages against defendant Powelson solely upon Powelson's failure to bring about such
detention, not upon Powelson's failure to give the above described
warnings, that claim likewise fails to state a
cause of action.
1. Plaintiffs' complaints.
Plaintiffs, Tatiana's mother and father, filed separate but virtually identical
second amended complaints. The issue before us on this appeal is whether those
complaints now state, or can be amended to
[*556]
[***132] state,
causes of action
against defendants. We therefore begin by setting forth the pertinent
allegations of the complaints. n3
-----------------------FOOTNOTE----------------------------
n3 Plaintiffs' complaints allege that defendants failed to
warn Tatiana's parents of the danger to Tatiana from Poddar. The complaints do not
specifically state whether defendants warned Tatiana herself. Such an
omission can properly be cured by amendment. As we stated in Minsky v. City of Los
Angeles: 'It is axiomatic that if there is a reasonable possibility that a
defect in the complaint can be cured by amendment or that the pleading
liberally construed can state a
cause of action, a demurrer should not be sustained without leave to amend. (3 Witkin,
Cal.Procedure, Pleading,
§ 844, p. 2449; accord
La Sala v. American Sav. & Loan Assn. (1971), 5 Cal.3d 864, 876, 97 Cal.Rptr. 849, 489 P.2d 1113;
Lemoge Electric v. County of San Mateo (1956) 46 Cal.2d 659, 664, 297 P.2d 638;
Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 782, 98 Cal.Rptr. 779.) We believe a
cause of action has been stated here.'
(11 Cal.3d 113, 118-119, 113 Cal.Rptr. 102, 107, 520 P.2d 726, 731).
[**6]
--------------------FOOTNOTE END--------------------------
Plaintiffs' first
cause of action, entitled 'Failure to Detain a
Dangerous Patient,' alleges that on August 20, 1969, Poddar was a voluntary outpatient receiving
therapy at Cowell Memorial Hospital. Poddar informed Moore, his
therapist, that he was going to kill an unnamed girl, readily identifiable as Tatiana,
when she returned home from spending the summer in Brazil. Moore, with the
concurrence of Dr. Gold, who had
initially examined Poddar, and Dr. Yandell, assistant to the director of the
department of
psychiatry, decided that Poddar should be committed for observation in a mental hospital.
Moore orally notified Officers Atkinson and Teel of the campus police that he
would request commitment. He then sent a letter to Police Chief William Beall
requesting the assistance of the police department in securing Poddar's
confinement.
Officers Atkinson, Brownrigg, and Halleran took Poddar into custody, but,
satisfied that Poddar was rational, released him on his promise to stay away
from Tatiana. Powelson, director of the department of
psychiatry at Cowell Memorial Hospital, then asked the police to return Moore's letter,
directed
[**7] that all copies of the letter and notes that Moore had taken as
therapist be destroyed, and 'ordered no action to place Prosenjit Poddar in 72-hour
treatment and evaluation facility.'
Plaintiffs' second
cause of action, entitled 'Failure to
Warn On a
Dangerous
Patient,' incorporates the allegations of the first
cause of action, but adds the assertion that defendants negligently permitted Poddar to be
released from police custody without 'notifying the parents of Tatiana Tarasoff
that their daughter was in grave danger from Posenjit Poddar.' Poddar persuaded
Tatiana's brother to share an apartment with him near Tatiana's residence;
shortly after her return from Brazil, Poddar went to her residence and killed
her.
Plaintiffs' third
cause of action, entitled 'Abandonment of a
Dangerous Patient,' seeks $ 10,000
punitive damages against defendant Powelson. Incorporating the crucial allegations of the first
cause of action, plaintiffs charge that Powelson 'did the things herein alleged with intent to
abandon a
dangerous patient, and said acts were done maliciously and oppressively.'
Plaintiff's fourth
cause of action, for 'Breach of Primary
Duty to
Patient and the Public' states essentially
[**8] the same allegations as the first
cause of action, but seeks to characterize
defendants' conduct as a breach of
duty to safeguard their
patient and the public. Since such conclusory labels add nothing to the factual
allegations of the complaint, the first and fourth
causes of action are legally indistinguishable.
2. Plaintiffs can state a
cause of action for negligent
failure to warn.
The second
cause of action in plaintiffs' complaints alleges that Tatiana's death proximately resulted
from defendants' negligent
failure to warn plaintiffs of Poddar's intention to kill Tatiana and claims general and
special damages. Ordinarily such allegations of negligence, proximate
causation, and damages would establish a
cause of action. (See
Dillon v. Legg
[*557]
[***133] (1968) 68 Cal.2d 728, 733-734, 69 Cal.Rptr. 72, 441 P.2d 912.) Defendants, however, contend that in the circumstances of the present case
they owed no
duty of care to Tatiana or her parents and that, in the absence of such
duty, they were free to act in careless disregard of Tatiana's life and safety.
In analyzing this contention, we bear in mind that legal
duties are not discoverable facts of nature, but merely conclusory
[**9] expressions that, in cases of a particular type, liability should be imposed
for damage done. As stated in
Dillon v. Legg, supra, at page 734, 69 Cal.Rptr. at page 76, 441 P.2d at page 916: 'The assertion that liability must ... be denied because defendant bears no 'duty' to plaintiff 'begs the essential question--whether the plaintiff's interests
are entitled to legal protection against the defendant's conduct . . . (4)27 [Duty] is not sacrosanct in itself, but only an expression of the sum total of those
considerations of policy which lead the law to say that the particular
plaintiff is entitled to protection.' (Prosser, Law of Torts [3d ed. 1964] at
pp. 332-333.)'
Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 100, 443 P.2d 561, 564, listed the principal considerations: 'the foreseeability of harm to the
plaintiff, the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant's conduct and the injury
suffered, the moral blame attached to the defendant's conduct, the policy of
preventing future harm, the extent of the burden to the defendant and
consequences to the community of imposing a
duty to exercise care
[**10] with resulting liability for breach, and the availability, cost, and
prevalence of insurance for the risk involved.' n4
-----------------------FOOTNOTE----------------------------
n4 See
Merrill v. Buck (1962) 58 Cal.2d 552, 562, 25 Cal.Rptr. 456, 375 P.2d 304;
Biakanja v. Irving (1958) 49 Cal.2d 647, 650, 320 P.2d 16;
Walnut Creek Aggregates Co. v. Testing Engineers Inc. (1967) 248 Cal.App.2d 690, 695, 56 Cal.Rptr. 700.
--------------------FOOTNOTE END--------------------------
Although under the common law, as a general rule, one person owed no
duty to control the conduct of another n5 (
Richards v. Stanley (1954) 43 Cal.2d 60, 65, 271 P.2d 23;
Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277, 40 Cal.Rptr. 812; Rest.2d Torts (1965) 315), nor to
warn those endangered by such conduct (Rest.2d Torts, supra,
§ 314, com. c; Prosser, Law of Torts (4th ed. 1971)
§ 56, p. 341), the courts have noted exceptions to this
rule. In two classes of cases the courts have imposed a
duty of care: (1) 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
[**11] conduct (see Rest.2d Torts, supra,
§§315-320); and (2) cases in which the defendant has engaged, or undertaken to
engage, in affirmative action to control the anticipated dangerous conduct or
protect the prospective victim. (See Rest.2d Torts, supra,
§§321-324a.) n6 Both exceptions apply to the facts of this case.
-----------------------FOOTNOTE----------------------------
n5 This rule derives from the common law's distinction between misfeasance and
nonfeasance, and its reluctance to impose liability for the latter. (See Harper
& Kime, The
Duty to Control the Conduct of Another (1934)
43 Yale L.J. 886, 887.) Morally questionable, the rule owes its survival to 'the difficulties of
setting any standards of unselfish service to fellow men, and of making any
workable rule to cover possible situations where fifty people might fail to
rescue. (Prosser, Torts (4th ed. 1971)
§ 56, p. 341.) Because of these practical difficulties, the courts have
increased the number of instances in which affirmative
duties are imposed not by direct rejection of the common-law rule, but by expanding
the list of
special relationships which will justify departure from that rule. (See Prosser, supra,
§ 56, at pp. 348-350.)
n6 A line of cases discussing the liability of a defendant who negligently
provides an instrumentality by which a third person injures the plaintiff
presents issues similar to the present case, although distinguishable in that
such cases require the defendant only to take reasonable precautions to
safeguard his own property. In
Richards v. Stanley (1954) 43 Cal.2d 60, 271 P.2d 23, defendant left the ignition keys in her car; a thief stole the car and,
driving negligently, injured the plaintiff. Relying on the rule that
'Ordinarily, ... in the absence of a
special relationship between the parties, there is no
duty to control the conduct of a third person so as to prevent him from causing
harm to another'
(43 Cal.2d at p. 65, 271 P.2d at p. 27), the court affirmed a judgment for defendant. A year later, however, in
Richardson v. Ham (1955) 44 Cal.2d 772, 285 P.2d 269, the court held that defendants who left a bulldozer unlocked could be held
liable for damage caused after trespassers started the vehicle and then
abandoned it to run amuck. Distinguishing Richards v. Stanley, the court
stated that the 'extreme danger created by a bulldozer in uncontrolled motion
and the foreseeable risk of intermeddling fully justify imposing a
duty on the owner to exercise
reasonable care to protect third parties from injuries arising from its operation by
intermeddlers.'
(44 Cal.2d at p. 776, 285 P.2d at p. 271.) In
Hergenrether v. East (1964) 61 Cal.2d 440, 39 Cal.Rptr. 4, 393 P.2d 164, the court further limited the scope of Richards v. Stanley, and imposed
liability upon a defendant, who parked his truck in a 'skid row' area with the
ignition keys in the truck, for damages caused by the reckless driving of a
thief. Again the court distinguished Richards on the ground that '[S]pecial
circumstances which impose a greater potentiality of
foreseeable risk or more serious injury, or require a lesser burden of
preventative action, may be deemed to impose an unreasonable risk on, and a
legal
duty to, third persons.'
(61 Cal.2d at p. 444, 39 Cal.Rptr. at p. 6, 393 P.2d at p. 166.) The cases thus exemplify an evolution from a rule of 'no
duty' to a rule in which imposition of a
duty of care depends upon the foreseeability of serious injury and the burden of
precautions. (See
Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 240-242, 60 Cal.Rptr. 510, 430 P.2d 68.)
[**12]
--------------------FOOTNOTE END--------------------------
[*558]
[***134] Turning, first, to the
special relationships present in this case, we note that a relationship of defendant
therapists to either Tatiana or to Poddar will suffice to establish a
duty of
care; as explained in section 315 of the Restatement Second of Torts, a
duty of care may arise from either '(a) a special relation ... between the actor
and the third person which imposes a
duty upon the actor to control the third person's conduct, or (b) a special
relation ... between the actor and the other which gives to the other a right
to protection.'
Although plaintiffs' pleadings assert no special relation between Tatiana and
defendant
therapists, they establish as between Poddar and defendant
therapists the special relation that arises between a
patient and his
doctor or
psychotherapist. n7 Such a relationship may support affirmative
duties for the benefit of third persons. (See Fleming
& Maximov, The
Patient or His Victim: The
Therapist's Dilemma (1974)
62 Cal.L.Rev. 1025, 1027-1031.) Thus, for example, a hospital must exercise
reasonable
care to control the behavior of a
patient which may endanger other
[**13] persons. n8 A
doctor must also
warn a
patient if the
patient's condition or medication renders certain conduct, such as driving a car,
dangerous to others. n9
-----------------------FOOTNOTE----------------------------
n7 The pleadings establish the requisite relationship between Poddar and both
Dr. Moore, the
psychotherapist who treated Poddar, and Dr. Powelson, who supervised that treatment.
Plaintiffs also allege that Dr. Gold personally examined Poddar, and that Dr.
Yandell, as Powelson's assistant, approved the decision to arrange Poddar's
commitment. These allegations are sufficient to raise the issue whether a
doctor-patient or psychotherapist-patient relationship, giving rise to a
possible
duty by the
doctor or
therapist reasonably to
warn threatened persons of danger arising from the
patient's mental illness, existed between Gold or Yandell and Poddar. (See Harney,
Medical Malpractice (1973) p.
7.)
n8 When a 'hospital has notice or knowledge of facts from which it might
reasonably be concluded that a
patient would be likely to harm himself or others unless preclusive measures were
taken, then the hospital must use
reasonable care in the circumstances to prevent such harm.' (
Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 469, 62 Cal.Rptr. 577, 580, 432 P.2d 193, 196.) (Emphasis added.) A mental hospital may be liable if it negligently permits
the escape or release of a
dangerous patient (
Underwood v. United States (5th Cir.1966) 356 F.2d 92;
Fair v. United States (5th Cir.1956) 234 F.2d 288).
Greenberg v. Barbour (E.D.Pa.1971) 322 F.Supp. 745, upheld a
cause of action against
a hospital staff
doctor whose negligent failure to admit a mental
patient resulted in that
patient assaulting the plaintiff.
n9
Kaiser v. Suburban Transp. System (1965) 65 Wash.2d 461, 398 P.2d 14, 401 P.2d 350; see
Freese v. Lemmon (Iowa 1973) 210 N.W.2d 576 (concurring opinion of Uhlenhopp, J.)
[**14]
--------------------FOOTNOTE END--------------------------
Although the California decisions that recognize this
duty have involved cases in which the defendant stood in a
special
[*559]
[***135] relationship both to the victim and to the person whose conduct created the danger, n10 we
do not think that the
duty should logically be constricted to such situations. Decisions of other
jurisdictions hold that the single relationship of a
doctor to his
patient is sufficient to support the
duty to use
reasonable care to
warn of dangers emanating from the
patient's illness. The courts hold that a
doctor is liable to persons infected by his
patient if he negligently fails to diagnose a contagious disease (
Hofmann v. Blackmon (Fla.App.1970) 241 So.2d 752), or, having diagnosed the illness, fails to
warn members of the
patient's family (
Wojcik v. Aluminum Co. of America (1959) 18 Misc.2d 740, 183 N.Y.S.2d 351, 357-358;
Davis v. Rodman (1921) 147 Ark. 385, 227 S.W. 612;
Skillings v. Allen (1919) 143 Minn. 323, 173 N.W. 663; see also
Jones v. Stanko (1928) 118 Ohio St. 147, 160 N.E. 456.)
-----------------------FOOTNOTE----------------------------
n10
Ellis v. D'Angelo (1953) 116 Cal.App.2d 310, 253 P.2d 675, upheld a
cause of action against parents who failed to
warn a
babysitter of the
violent proclivities of their child;
Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, upheld a suit against the state for
failure to warn foster parents of the dangerous tendencies of their ward;
Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 508, sustained a
cause of action against a sheriff who had promised to
warn decedent before releasing a dangerous prisoner, but failed to do so.
[**15]
--------------------FOOTNOTE END--------------------------
More closely on point, since it involved a dangerous mental
patient, is the decision in
Merchants Nat. Bank & Trust Co. of Fargo v. United States (D.N.D.1967) 272 F.Supp. 409. The Veterans Administration arranged for the
patient to work on a
local farm, but did not
warn the farmer of the man's background. The farmer consequently permitted the
patient to come and go freely during nonworking hours; the
patient borrowed a car, drove to his wife's residence and killed her. Notwithstanding
the lack of any 'special relationship' between the Veterans Administration and the wife, the court found the Veterans
Administration liable for the wrongful death of the wife.
As the present case illustrates, a
patient with severe mental illness and dangerous proclivities may, in a given case,
present a danger as serious and as foreseeable as does the carrier of a
contagious disease or the driver whose condition or medication affects his
ability to drive safely. We conclude that a
doctor or a
psychotherapist treating a mentally ill
patient, just as a
doctor treating physical illness, bears a
duty to use
reasonable care to give threatened persons
[**16] such
warnings as are
essential to avert foreseeable danger arising from his
patient's condition or treatment.
As we stated previously, a
duty to warn may also arise from a voluntary act or undertaking by a defendant. Once the
defendant has commenced to render service, he must employ
reasonable care; if
reasonable care requires the giving of
warnings, he must do so. Numerous cases hold that if a defendant's prior conduct has
created or contributed to a danger, even if that conduct itself is
non-negligent or protected by governmental
immunity, the defendant bears a
duty to warn affected persons of such impending danger. (See
Johnson v. State of California (1968) 69 Cal.2d 782, 796-797, 73 Cal.Rptr. 240, 447 P.2d 352, and cases there cited; Rest.2d Torts, supra,
§ 321 and illus. to com. (a),
§ 323 and com. (c).)
The record in
People v. Poddar (1974) 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342 indicates, and plaintiffs' complaints could be amended to assert, that
following Poddar's encounter with the police, Poddar broke off all contact with
the hospital staff and discontinued psychotherapy. From those facts one could
reasonably infer that defendants' actions led Poddar to halt
[**17] treatment which, if carried through, might have led him to abandon his plan to
kill Tatiana, and thus that defendants, having contributed to the danger, bear
a
duty to give
warning.
Defendant
therapists advance two policy considerations which, they suggest, justify
[*560]
[***136] refusal to impose a
duty upon a
psychotherapist to
warn third parties of danger arising from the
violent intentions of his
patient. We explain why, in our view, such considerations do not preclude imposition
of the
duty in question.
First, defendants point out that although
therapy
patients often express thoughts of
violence, they rarely carry out these ideas. Indeed the open and confidential character
of psychotherapeutic dialogue encourages
patients to voice such thoughts, not as a device to reveal hidden danger, but as part
of the process of therapy. Certainly a
therapist should not be encouraged routinely to reveal such threats to acquaintances of
the
patient; such
disclosures could seriously disrupt the
patient's relationship with his
therapist and with the persons threatened. In singling out those few
patients whose threats of
violence present a serious danger and in weighing against this
[**18] danger the harm to the
patient that might result from revelation, the
psychotherapist renders a decision involving a high order of expertise and judgment.
The judgment of the
therapist, however, is no more delicate or demanding than the judgment which
doctors and professionals must regularly render under accepted rules of
responsibility. A professional person is required only to exercise 'that
reasonable degree of skill, knowledge, and care ordinarily possessed and
exercised by members of [his]
profession under similar circumstances.' (
Bardessono v. Michels (1970) 3 Cal.3d 780, 788, 91 Cal.Rptr. 760, 764, 478 P.2d 480, 484.) As a specialist, the
psychotherapist, whether
doctor or psychologist, would also be 'held to that standard of learning and skill
normally possessed by such specialist in the same or similar locality under the
same or similar circumstances.' (
Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159-160, 41 Cal.Rptr. 577, 580, 397 P.2d 161, 164.) But within that broad range in which professional opinion and judgment may
differ respecting the proper course of action, the
psychotherapist is free to exercise his own best judgment free from liability; proof, aided
[**19]
by hindsight, that he judged wrongly is insufficient to establish liability.
In other words, the fact that a decision calls for considerable expert skill
and judgment means, in effect, that it be tested by a standard of care which
takes account of those circumstances; the standard used in measuring
professional malpractice does so. But whatever difficulties the courts may
encounter in evaluating the expert judgments of other
professions, those difficulties cannot justify total exoneration from liability.
Second, defendants argue that free and open communication is essential to
psychotherapy (see
In re Lifschutz (1970) 2 Cal.3d 415, 431-432, 85 Cal.Rptr. 829, 467 P.2d 557); that 'Unless a
patient ... is assured that ... information [revealed by him] can and will be held in
utmost confidence, he will be reluctant to make the full
disclosure upon which
diagnosis and treatment ... depends.' (Sen. Committee on the Judiciary,
comments on Evid.Code,
§ 1014.) The giving of a
warning, defendants contend, constitutes a breach of trust which entails the revelation
of confidential communications.
We recognize the public interest in supporting effective treatment of mental
illness and in
[**20] protecting the rights of
patients to privacy (see
In re Lifschutz, supra, 2 Cal.3d at p. 432, 85 Cal.Rptr. 829, 467 P.2d 557), and the consequent public importance of safeguarding the confidential
character of psychotherapeutic communication. Against this interest, however,
we must weigh the public interest in safety from
violent assault. The Legislature has undertaken the difficult task of balancing the
countervailing concerns. In Evidence Code section 1014, it established a broad
rule of privilege to protect confidential communications between
patient and
psychotherapist. In Evidence Code
section 1024, however, the Legislature created a specific and limited exception
to the psychotherapist-patient privilege: 'There is
[*561]
[***137] no privilege ... if the
psychotherapist has reasonable cause to believe that the
patient is in such mental or emotional condition as to be dangerous to himself or to
the person or property of another and that
disclosure of the communication is necessary to prevent the threatened danger.' n11
-----------------------FOOTNOTE----------------------------
n11 Fleming and Maximov note that 'While [section 1024] supports the
therapist's less controversial right to make a
disclosure, it admittedly does not impose on him a
duty to do so. But the argument does not have to be pressed that far. For if it is
once conceded ... that a
duty in favor of the
patient's foreseeable victims would accord with general principles of tort liability, we
need no longer look to the statute for a source of
duty. It is sufficient if the statute can be relied upon ... for the purpose of
countering the claim that the needs of
confidentiality are paramount and must therefore defeat any such hypothetical
duty.
In this more modest perspective, the Evidence Code's 'dangerous patient' exception may be invoked with some confidence as a clear expression of
legislative policy concerning the balance between the
confidentiality values of the
patient and the safety values of his foreseeable victims.' (Emphasis in original.)
Fleming
& Maximov, The
Patient or His Victim: The
Therapist's Dilemma (1974)
62 Cal.L.Rev. 1025, 1063.
[**21]
--------------------FOOTNOTE END--------------------------
The revelation of a communication under the above circumstances is not a breach
of trust or a violation of professional ethics; as stated in the Principles of
Medical Ethics of the American Medical Association (1957) section 9: 'A
physician may not reveal the confidences entrusted to him in the course of
medical attendance ... unless he is required to do so by law or unless it
becomes necessary in order to protect the welfare of the individual or of the
community.' (Emphasis added.) We conclude that the public policy favoring
protection of the confidential character of patient-psychotherapist
communications must yield in instances in which
disclosure is essential to avert danger to others. The protective privilege ends where
the public
peril begins.
Our current crowded and computerized society compels the interdependence of its
members. In this risk-infested society we can hardly tolerate the further
exposure to danger that would result from a concealed knowledge of the
therapist that his
patient was lethal. If in the exercise of
reasonable care the
therapist can
warn the endangered party or those who can reasonably be
[**22] expected to notify him, we see no sufficient societal interest that would
protect and justify concealment. The containment of such risks lies in the
public interest.
For the foregoing reasons, we find that plaintiffs' complaints can be amended
to state a
cause of action against defendants Moore, Powelson, Gold, and Yandell and against the Regents
as their employer, for breach of a
duty to warn Tatiana arising from the
relationship of these defendants to Poddar. n12 The complaints can also be
amended to assert
causes of action against the police defendants for
failure to warn on the theory that the officers' conduct increased the risk of
violence. The judgment of the superior court, sustaining defendants' demurrers without
leave to amend must therefore be reversed.
-----------------------FOOTNOTE----------------------------
n12 Moore argues that after Powelson countermanded the decision to seek
commitment for Poddar, Moore was obliged to obey the decision of his superior
and that he therefore should not be held liable for any dereliction arising
from his obedience to superior orders. Plaintiffs in response argue that
Moore's
duty to members of the public endangered by Poddar should take precedence over his
duty to obey Powelson. Since plaintiffs' complaints do not set out the date of
Powelson's order, the specific terms of that order, or Powelson's authority to
overrule Moore's decisions respecting
patients under Moore's care, we lack sufficient
factual background to adjudicate this conflict.
[**23]
------------------FOOTNOTE END--------------------------
3. Defendants are not
immune from liability for
failure to warn.
We turn to the issue of whether defendants are protected by governmental
immunity for having failed to
warn Tatiana or those who reasonably could have been expected to notify her of her
peril. We focus our analysis on section 820.2 of the
[*562]
[***138] Government Code. n13 That provision declares, with exceptions not applicable
here, that 'a public employee is not liable for an injury resulting from his
act or
omission where the act or
omission was the result of the exercise of the discretion vested in him, whether or not
such discretion [was] abused.' n14
-----------------------FOOTNOTE----------------------------
n13 No more specific
immunity provision of the Government Code appears to address the issue.
n14 Section 815.2 of the Government Code declares that '[a] public entity is
liable for injury proximately caused by an act or
omission of an employee of the public entity within the scope of his employment if the
act or
omission would, apart from this
section, have given rise to a
cause of action against that employee or his personal representative.' The section further
provides, with exceptions not applicable here, that 'a public entity is not
liable for an injury resulting from an act or
omission of an employee of the public entity where the employee is
immune from liability.' The Regents, therefore, are
immune from liability only if all individual defendants are similarly
immune.
[**24]
--------------------FOOTNOTE END--------------------------
Noting that virtually every public act admits of some element of discretion, we
drew the line in
Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, between
discretionary policy decisions which enjoy statutory
immunity and ministerial administrative acts which do not. We concluded that section
820.2 affords
immunity only for 'basic policy decisions.' (Emphasis added.) (See also
Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1057-1058, 84 Cal.Rptr. 27; 4 Cal.Law Revision Com.Rep. (1963) p. 810; Van Alstyne, Supplement to
Cal.Government Tort Liability (Cont.Ed.Bar 1969)
§ 5.54, pp. 16-17; Comment, California Tort Claims Act:
Discretionary
Immunity (1966)
39 So.Cal.L.Rev. 470, 471; cf. James, Tort Liability of Governmental Units and their Officers (1955)
22 U.Chi.L.Rev. 610, 637-638, 640, 642, 651.)
We also observed that if courts did not respect this statutory
immunity, they would find themselves 'in the unseemly position of determining the
propriety of decisions expressly entrusted to a coordinate branch of
government.' (
Johnson v. State of California, supra, 69 Cal.2d at p. 793, 73
[**25] Cal.Rptr. at p. 248, 447 P.2d at p. 360.) It therefore is necessary, we concluded, to 'isolate those areas of
quasi-legislative policy-making which are sufficiently sensitive to justify a
blanket rule that courts will not entertain a tort action alleging that
careless conduct contributed to the governmental decision.' (
Johnson v. State of California, supra, at p. 794, 73 Cal.Rptr. at p. 248, 447 P.2d at p. 360.) After careful analysis we rejected, in Johnson, other rationales commonly
advanced to support governmental
immunity, n15 and concluded that the
immunity's scope should be no greater than is required to give legislative and executive
policymakers sufficient breathing space in which to perform their vital
policymaking functions.
-----------------------FOOTNOTE----------------------------
n15 We dismissed, in Johnson, the view that
immunity continues to be necessary in order to insure that public employees will be
sufficiently
zealous in the performance of their official
duties. The California Tort Claims Act of 1963 provides for indemnification of public
employees against liability, absent bad faith, and also permits such employees
to insist that their defenses be conducted at public expense. (See Gov.Code,
§§825-825.6, 995-995.2.) Public employees thus no longer have a significant
reason to fear liability as they go about their official tasks. We also, in
Johnson, rejected the argument that a public employee's concern over the
potential liability of his or her employer serves as a basis for
immunity. (
Johnson v. State of California, supra, 69 Cal.2d at pp. 790-793, 72 Cal.Rptr. 240, 447 P.2d 352.)
[**26]
--------------------FOOTNOTE END--------------------------
Relying on Johnson, we conclude that defendants in the present case are not
immune from liability for their
failure to warn of Tatiana's
peril.
Johnson held that a parole officer's determination whether to
warn an adult couple that their prospective foster child had a background of
violence 'present[ed] no ... reasons for
immunity' (
Johnson v. State of California, supra, at p. 795, 73 Cal.Rptr. 240, 447 P.2d 352), was 'at the lowest, ministerial rung of official action' (
id. at p. 796, 73 Cal.Rptr. at p. 250, 447 P.2d at p. 362), and indeed constituted 'a classic case for the imposition of
[*563]
[***139] tort liability.'
Id., p. 797, 73 Cal.Rptr. at p. 251, 447 P.2d at p. 363; cf.
Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 942-943, 41 Cal.Rptr. 508.) Although defendants in Johnson argued that the decision whether to inform the
foster parents of the child's background required the exercise of considerable
judgmental skills, we concluded that the state was not
immune from liability for the parole officer's
failure to warn because such a decision did not rise to the level of a 'basic policy
decision.'
[**27]
We also noted in Johnson that federal courts have consistently categorized
failures to warn of latent dangers as falling outside the scope of
discretionary
omissions immunized by the Federal Tort Claims Act. n16 (See
United Air Lines, Inc. v. Weiner (9th Cir.1964) 335 F.2d 379, 397-398, cert. den. sub nom.
United Air Lines, Inc. v. United States, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (decision to conduct military training flights was
discretionary but
failure to warn commercial
airline was not);
United States v. Washington (9th Cir.1965) 351 F.2d 913, 916 (decision where to place transmission lines spanning canyon was assumed to be
discretionary but
failure to warn pilot was not);
United States v. White (9th Cir.1954) 211 F.2d 79, 82 (decision not to 'dedud' army firing range assumed to be
discretionary but
failure to warn person about to go onto range of unsafe condition was not);
Bulloch v. United States (D.Utah 1955) 133 F.Supp. 885, 888 (decision how and when to conduct nuclear test deemed
discretionary but failure to afford proper notice was not);
Hernandez v. United States (D.Hawaii 1953) 112 F.Supp. 369, 371 (decision to erect road block characterized as
discretionary
[**28]
but
failure to warn of resultant hazard was not).
-----------------------FOOTNOTE----------------------------
n16 By analogy, section 830.8 of the Government Code furnishes additional
support for our conclusion that a
failure to warn does not fall within the zone of
immunity created by section 820.2. Section 830.8 provides: 'Neither a public entity nor
a public employee is liable ... for an injury caused by the failure to provide
traffic or
warning signals, signs, markings or devices described in the Vehicle Code. Nothing in
this section exonerates a public entity or public employee from liability for
injury proximately caused by such failure if a signal, sign, marking or device
... was necessary to
warn of a dangerous condition which endangered the safe movement of traffic and
which would not be reasonably apparent to, and would not have been anticipated
by, a person exercising due care.' The Legislature thus
concluded at least in another context that the
failure to warn of a latent danger is not an immunized
discretionary
omission. (See
Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 174, 71 Cal.Rptr. 275.)
--------------------FOOTNOTE END--------------------------
[**29]
We conclude, therefore, that the defendants'
failure to warn Tatiana or those who reasonably could have been expected to notify her of her
peril does not fall within the absolute protection afforded by section 820.2 of the
Government Code. We emphasize that our conclusion does not raise the specter of
therapists employed by government indiscriminately held liable for damages despite their
exercise of sound professional judgment. We require of publicly employed
therapists only that quantum of care which the common law requires of private
therapists, that they use that reasonable degree of skill, knowledge, and
conscientiousness ordinarily exercised by members of their
profession. The imposition of liability in those rare cases in which
a public employee falls short of this standard does not contravene the language
or purpose of Government Code section 820.2.
4. Defendant
therapists are
immune from liability for failing to
confine Poddar.
We sustain defendant
therapists' contention that Government Code section 856 insulates them from liability for
failing to
confine Poddar. Section 856 affords public entities and their employees absolute
protection from liability for 'any injury
[**30] resulting from determining in accordance with any applicable enactment ...
whether to
confine a person for mental illness.' n17 The section includes an exception to the
general rule of
immunity, however,
[*564]
[***140] 'for injury proximately caused by ... negligent or wrongful act[s] or
omission[s] in carrying out or failing to carry out ... a determination to
confine or not to
confine a person for mental illness . . .
-----------------------FOOTNOTE----------------------------
n17 Section 5201 of the Welfare and Institutions
Code provides: 'Any individual may apply to the person or agency designated by
the county for a petition alleging that there is in the county a person who is,
as a result of mental disorder a danger to others, or to himself, or is gravely
disabled, and requesting that an evaluation of the person's condition be made.'
We believe that defendant
therapists' power to recommend
confinement as provided by section 5201 suffices to place them within the class of persons
protected by section 856 of the Government Code. They are persons who can
'determin[e] in accordance with [section 5201] whether to
confine a person for mental illness.'
--------------------FOOTNOTE
[**31] END--------------------------
Turning first to Dr. Powelson's status with respect to section 856, we observe
that the actions attributed to him by plaintiffs' complaints fall squarely
within the protections furnished by that provision. Plaintiffs allege Powelson
ordered that no detention action be taken. This conduct
definitionally reflected Powelson's 'determining ... [not] to
confine [Poddar].' Powelson therefore is
immune from liability for any injuries stemming from his decision. (See
Hernandez v. State of California (1970) 11 Cal.App.3d 895, 90 Cal.Rptr. 205.)
Section 856 also insulates Dr. Moore for his conduct respecting
confinement, although the analysis in his case is a bit more subtle. Clearly, Moore's
decision that Poddar be confined was not a proximate cause of Tatiana's death,
for indeed if Moore's efforts to bring about Poddar's
confinement had been successful, Tatiana might still be alive today. Rather, any
confinement claim against Moore must rest upon Moore's failure to overcome Powelson's
decision and actions opposing
confinement.
Such a claim, based as it necessarily would be upon a subordinate's failure to
prevail over his superior, obviously would derive
[**32] from
a rather onerous
duty. Whether to impose such a
duty we need not decide, however, since we can
confine our analysis to the question whether Moore's failure to overcome Powelson's
decision realistically falls within the protections afforded by section 856.
Based upon the allegations before us, we conclude that Moore's conduct is
protected.
Plaintiffs' complaints imply that Moore acquiesced in Powelson's countermand of
Moore's
confinement recommendation. Such acquiescence is functionally equivalent to 'determining
... [not] to
confine' and thus merits protection under section 856. At this stage we are unaware, of
course, precisely how Moore responded to Powelson's actions; he may have
debated the
confinement issue with Powelson, for example, or taken no initiative whatsoever, perhaps
because he respected Powelson's judgment, feared for his future at the
hospital, or simply recognized that the proverbial handwriting was on the wall.
None of these possibilities constitutes, however, the type of careless or
wrongful behavior subsequent to a
decision respecting
confinement which is stripped of protection by the exceptionary language in section 856.
Rather, each is in the nature of
[**33] a decision not to continue to press for Poddar's
confinement. No language in plaintiffs' original or amended complaints suggests that Moore
determined to fight Powelson but failed successfully to do so due to negligent
or otherwise wrongful acts or
omissions. Under the circumstances, we conclude that plaintiffs' second amended
complaints allege facts which trigger
immunity for Dr. Moore under section 856. n18
-----------------------FOOTNOTE----------------------------
n18 Because Dr. Gold and Dr. Yandell were Dr. Powelson's subordinates, the
analysis respecting whether they are
immune for having failed to obtain Poddar's
confinement is similar to the analysis applicable to Dr. Moore.
--------------------FOOTNOTE END--------------------------
5. Defendant
police officers are
immune from liability for failing to continue Poddar in their custody.
Confronting, finally, the
question whether the defendant
police officers are
immune from liability for releasing Poddar after his brief
confinement, we conclude
[*565]
[***141] that they are. The source of their
immunity is section 5154 of the Welfare and Institutions Code, which declares that
'[t]he professional person
[**34] in charge of the facility providing 72-hour treatment and evaluation, his
designee, and the peace officer responsible for the detainment of the person
shall not be held civilly or criminally liable for any action by a person
released at or before the end of 72 hours . . .' (Emphasis added.)
Although defendant
police officers technically were not 'peace officers' as contemplated by the Welfare and
Institutions Code, n19 plaintiffs' assertion that the officers incurred
liability by failing to continue Poddar's
confinement clearly contemplates that the officers were 'responsible for the detainment of
[Poddar].' We could not impose a
duty upon the officers to keep Poddar confined yet deny them the protection
furnished by a statute immunizing those 'responsible for ... [confinement].' Because plaintiffs would have us treat defendant officers as persons who
were capable of performing the functions of the 'peace officers' contemplated
by the Welfare and Institutions Code, we must accord defendant officers the
protections which that code prescribes for such 'peace officers.'
-----------------------FOOTNOTE----------------------------
n19 Welfare and Institutions Code section 5008, subdivision (i), defines 'peace
officer' for purposes of the Lanterman-Petris-Short Act as a person specified
in sections 830.1 and 830.2 of the Penal Code. Campus police do not fall within
the coverage of section 830.1 and were not included in section 830.2 until
1971.
[**35]
--------------------FOOTNOTE END--------------------------
6. Plaintiffs' complaints state no
cause of action for exemplary damages.
Plaintiffs' third
cause of action seeks
punitive damages against defendant Powelson. Incorporating by reference the
factual allegations of the first
cause of action, plaintiffs assert that Powelson 'did the things herein alleged with intent to
abandon a
dangerous patient, and said acts were done maliciously and oppressively.' n20 The incorporated
allegations speak only of Powelson's failure to bring about Poddar's
commitment; they do not refer to his
failure to warn Tatiana or her parents. Since we have concluded that Powelson is protected by
governmental
immunity from liability for his decision not to commit Poddar, plaintiffs' complaints
state no basis for recovery of exemplary damages against Powelson.
-----------------------FOOTNOTE----------------------------
n20 Defendant Powelson points out that plaintiffs do not allege that Powelson
knew Tatiana or plaintiffs, nor that his alleged malice or oppression was
directed toward them. Such an allegation, however, is not essential to a
cause of action for
punitive damages. In
Toole v. Richardson-Merrell Inc. (1967) 251 Cal.App.2d 689, 60 Cal.Rptr. 398, the court upheld an award of
punitive damages against the manufacturer of a dangerous drug. Rejecting the contention that
proof of a deliberate intention by the manufacturer to injure the users was
essential to
punitive damages, the court stated that 'malice in fact, sufficient to support an award of
punitive damages on the basis of malice as that term is used in Civil Code section 3294, may be
established by a showing that the defendant's wrongful conduct was wilful,
intentional, and done in reckless disregard of its possible results.'
(251 Cal.App.2d at p. 713, 60 Cal.Rptr. at p. 415.)
[**36]
--------------------FOOTNOTE END--------------------------
7. Conclusion
For the reasons stated, we conclude that plaintiffs can assert the elements
essential to a
cause of action for breach of a
duty to warn. The judgment of the superior court dismissing plaintiffs' action is reversed,
and the
cause remanded for further proceedings consistent with the views expressed
herein.
WRIGHT, C.J., and MOSK, SULLIVAN and BURKE,* JJ., concur.
-----------------------FOOTNOTE----------------------------
n* Retired Associate Justice of the Supreme Court sitting under assignment by
the Chairman of the Judicial Council.
CLARK, Justice (dissenting).
The majority's opinion correctly holds that when a
psychiatrist, in terminating treatment to a
patient, increases the risk of his
violence, the
psychiatrist must
warn the potential victim. However, I do not agree with the majority's conclusion
that the
psychiatrist
[*566]
[***142] must also disclose threats of
violence based solely on his prior psychiatrist-patient relationship. Further, I do not
agree with the majority's holding that
police officers shall become subject to the same
duty.
I
DUTY TO DISCLOSE BASED ON PSYCHIATRIST-PATIENT
[**37] RELATIONSHIP
Generally, one person owes no
duty to control the conduct of another. (
Richards v. Stanley (1954) 43 Cal.2d 60, 65, 271 P.2d 23;
Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277, 40 Cal.Rptr. 812; Rest.2d Torts (1965)
§ 315.) Exceptions arise only in limited situations where (1) a
special relationship exists between the defendant and the injured party giving the latter a right
to protection, or (2) a
special relationship exists between the defendant and the active wrongdoer imposing a
duty on the defendant to control the wrongdoer's conduct. The majority does not
contend the first exception is applicable to this case.
Overriding considerations of policy compel the conclusion that the
duty to warn a potential victim may not be founded on the mere existence of a
psychiatrist-patient relationship.
The imposition of a
duty depends on policy considerations. (
Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912.) The principal considerations include the burden on the defendant, the
consequence to the community, the prevention of future
violence, and the foreseeability of harm to the plaintiff. (
Rowland v. Christian (1968) 69 Cal.2d 108, 113,
[**38] 70 Cal.Rptr. 97, 443 P.2d 561.)
Although the majority fleetingly acknowledges these considerations, it neglects
applying them to our case. More specifically, the majority opinion fails to
realistically evaluate the devastating impact their new
duty will have on the field of mental health--and the repercussions resulting to
society.
The importance of
psychiatric treatment is well-recognized in California, reflected in this court's recent
statement, 'We recognize the growing importance of the
psychiatric
profession in our modern, ultra-complex society. The swiftness of change--economic,
cultural, and moral--produces
accelerated tensions in our society, and the potential for relief of such
emotional disturbances offered by psychological therapy undoubtedly establishes
it as a
profession essential to the preservation of societal health and well-being.' (
In re Lifschutz (1970) 2 Cal.3d 415, 421-422, 85 Cal.Rptr. 829, 832, 467 P.2d 557, 560.)
Successful psychotherapy demands
confidentiality. (
In re Lifschutz, supra, 2 Cal.3d 415, 422, 85 Cal.Rptr. 829, 467 P.2d 557.) 'It is clearly recognized that the very practice of
psychiatry vitally depends upon the reputation in the community that
[**39] the
psychiatrist will not tell.' (Slovenko,
Psychiatry and a Second Look at the Medical Privilege (1960)
6 Wayne L.Rev. 175, 188.)
Assurance of
confidentiality is important in three ways.
First, without
a substantial guarantee of
confidentiality, people requiring treatment will be deterred from seeking assistance. (See
Senate Judiciary Committee's comment accompanying section 1014 of the
Evid.Code; Slovenko, supra, 6 Wayne L.Rev. 175, 187-188; Goldstein and Katz,
Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute
(1962)
36 Conn.Bar J. 175, 178.) It remains an unfortunate fact in our society that a stigma attaches to people
seeking
psychiatric guidance (apparently increased by the propensity of people considering
treatment to see themselves in the worst possible light) creating a
well-recognized reluctance to seek aid. (Fisher, The Psychotherapeutic
Professions and the Law of Privileged Communications (1964)
10 Wayne L.Rev. 609, 617; Slovenko, supra, 6 Wayne L.Rev. 175, 188; see also
Rappeport, Psychiatrist-Patient Privilege (1963) 23 Md.L.J. 39, 46-47.) This
reluctance is alleviated by the
psychiatrist's assurance of
confidentiality.
[*567]
[***143]
[**40] Second, the guarantee of
confidentiality is important in eliciting the full
disclosure necessary for effective treatment. To carry out the cure, the
doctor must first diagnose the disease. Candor is essential to
psychiatric diagnosis. This diagnostic process requires 'a searching evaluation of the
given personality in the light of his past experiences and current
relationships' (Heller, Some Comments to Lawyers of the Practice of
Psychiatry (1957)
30 Temp.L.Q. 401), requiring intensive examination of 'innate and constitutional factors, the
history of the individual's emotional, educational, cultural, vocational and
medical backgrounds, the influence of sexual and aggressive instincts,
so-called ego or personality strength, judgment and reality-testing.' (
Id. at p. 402.) Summarily stated, 'The process involves a prying into the most
hidden aspects of personality, a prying which discloses matters theretofore
unknown even to the conscious mind of the
patient.' (Slovenko, supra, 6 Wayne L.Rev. 175, 185.)
The assurance of
confidentiality is essential to bringing about full
disclosure since the
psychiatric
patient approaches treatment with conscious and unconscious inhibitions to revealing
[**41] his innermost thoughts. (Goldstein and Katz, supra, 36 Conn.B.J. 175, 178;
Guttmacher and Weihofen, Privileged Communications Between
Psychiatrist and
Patient (1952)
28 Ind.L.J. 32, 34.) 'Every person, however well-motivated, has to overcome resistances to
therapeutic exploration. These resistances seek support from every possible
source and the possibility of
disclosure would easily be employed in the service of resistance.' (Goldstein and Katz,
supra, 36 Conn.Bar J. 175, 179; see also,
118 Am.J.Psych. 734, 735.) Until a
patient can
trust his
psychiatrist not to violate their confidential relationship, 'the unconscious psychological
control mechanism of repression will prevent the recall of past experiences.'
(Butler, Psychotherapy and Griswold: Is
Confidentiality a Privilege or a Right? (1971)
3 Conn.L.Rev. 599, 604.) n1
-----------------------FOOTNOTE----------------------------
n1 One survey indicated that five of every seven people interviewed said they
would be less likely to make full
disclosure to a
psychiatrist in the absence of assurance of
confidentiality. (See, Comment, Functional Overlap Between the Lawyer and Other Professionals:
Its Implications for the Doctrine of Privileged Communications (1962)
71 Yale L.J. 1226, 1255.)
[**42]
--------------------FOOTNOTE END--------------------------
Third, even if full
disclosure is accomplished, assurance that the confidential relationship will not be
breached is necessary to maintain the
patient's trust of his
psychiatrist, the very means by which treatment is effected. '[T]he essence of much
psychotherapy is the contribution of trust
in the external world and ultimately in the self, modelled upon the trusting
relationship established during therapy.' (Dawidoff, The Malpractice of
Psychiatrists,
1966 Duke L.J. 696, 704.)
Patients will be helped only if they can form a trusting relationship with the
psychiatrist. (
Id. at p. 704, fn. 34; Burnham, Separation Anxiety (1965) 13 Arch.Gen.Psychiatry 346, 356; Heller, supra, 30 Temp.L.Q. 401, 406.) Conversely, all authorities
appear to agree treatment will be frustrated if the trust relationship cannot
be developed because of collusive communication between the
psychiatrist and others. (See, e.g., Ralph Slovenko (1973)
Psychiatry and Law, p. 61; Cross, Privileged Communications Between Participants in Group
Psychotherapy (1970) Law and the Social Order, 191, 199; Hollender, The
Psychiatrist and the Release of
Patient Information
[**43] (1960)
116 Am.J.Psychiatry 828, 829.)
Therefore, given the importance of
confidentiality to the practice of
psychiatry, it becomes clear the
duty to warn imposed by the majority will cripple the use and effectiveness of
psychiatry: many people, potentially
violent--yet susceptible to treatment--will be deterred from seeking it; those seeking
aid will be inhibited from making the self-revelation necessary to effective
treatment; finally, requiring the
psychiatrist to violate the
patient's trust by forcing the
doctor to disseminate confidential statements will destroy the interpersonal
[*568]
[***144] relationship by which treatment is effected.
The law recognizes the
psychiatrist's ability to lessen a
patient's propensity for
violence. Indeed, this ability is so well-established that the majority, in its second
reason for imposing a
duty to warn, concludes that because the
psychiatrists' conduct caused Poddar to discontinue treatment, the
psychiatrists actually 'contributed to the danger' that Poddar would act violently. (
Ante, p. 135 of 118 Cal.Rptr., p. 135 of 529 P.2d.)
By imposing such
duty on
psychiatrists, the majority contributes to society's danger. Given the majority's
[**44] recognition that under existing
psychiatric procedures only a relatively few receiving treatment will ever present a
serious risk of
violence (ante, p. 136 of
118 Cal.Rptr., p. 560 of 529 P.2d.), the newly imposed
duty will likely result in a net increase in
violence--inconsistent with the policies of preventing future
violence and of weighing the consequence to the community.
The majority overlooks the widespread impact of its new
duty by pointing out that only a few
psychiatric
patients will ever really create a serious risk of
violence and by assuming that the number of necessary
warnings will similarly be few. (
Ante, p. 136 of 118 Cal.Rptr., p. 560 of
529 P.2d.), This assumption strays from reality.
The
psychiatric community recognizes that the process of determining potential
violence in a
patient is far from exact, being wrought with complexity and uncertainty. (See,
Rector, Who Are the Dangerous? (July 1973) Bull. of the Amer. Acad. of Psych.
and the Law 186; Kozol, Boucher, and Garofalo, The Diagnosis and Treatment of
Dangerousness (1972) 18 Crime and Delinquency 371; Justice and Birkman, An
Effort to Distinguish the
Violent From the Nonviolent (1972) 65 So.Med.J. 703.) In
[**45] fact, precision has not even been attained in predicting who of those having
already committed
violent acts will again become
violent, a task recognized to be of simpler proportion. (Kozol, Boucher, and Garofalo,
supra, 18 Crime and Delinquency 371, 384.)
This predictive uncertainty is fatal to the majority's underlying assumption
that the number of
disclosures will necessarily be small. As noted, above
psychiatric
patients are
encouraged to discuss all thoughts of
violence. And, as the majority concedes, they often express such thoughts. However,
unlike this court, the
psychiatrist does not enjoy the benefit of hindsight in seeing which few, if any, of his
patients will ultimately become
violent. Now, operating under the majority's
duty, the
psychiatrist--with each
patient and each visit--must instantaneously calculate potential
violence. The difficulties researchers have encountered in accurately predicting
violence will be heightened for the practicing
psychiatrist dealing for brief periods in his office with heretofore nonviolent
patients. And, given the decision not to
warn must always be made at the
psychiatrist's civil
peril, one can expect all doubts will be resolved in favor
[**46] of
warning.
Relying on sections 1013, 1014, and 1024 of the Evidence Code, the majority
suggests that, in any event, the new
duty's harmful impact on the community has already been balanced by the Legislature
in
favor of
warning. However, this conclusion is faulty, failing to differentiate between the
permissive language of section 1024 and the mandatory
duty of the majority.
Section 1014 of the Evidence Code provides that 'the
patient, whether or not a party, has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication between
patient and
psychotherapist . . .(4)27' Section 1013 expressly provides that the
patient is the holder of the privilege. Section 1024 provides, 'There is no privilege
under this article if the
psychotherapist has reasonable cause to believe that the
patient is in such mental or emotional condition as to be dangerous to himself or to
the person or property of another and that
disclosure of the communication is necessary to prevent the threatened danger.'
[*569]
[***145] Section 1024 is solely permissive. When a
psychiatrist has determined to his satisfaction that some sort of formal
disclosure must be
[**47] made to protect the
patient or others, section 1024 precludes the
patient from invoking the section 1014 privilege to prevent him from doing so. n2
Clearly,
section 1024 neither imposes--nor contemplates--a legal
duty mandating the
psychiatrist to
warn, and the impact of requiring him to
warn is much greater than that of allowing him to do so.
-----------------------FOOTNOTE----------------------------
n2 This purpose is made simplistically clear in the Law Revision Commission's
comment accompanying section 1024: 'Although this exception might inhibit the
relationship between the
patient and his
psychotherapist to a limited extent, it is essential that appropriate action be taken if the
psychotherapist becomes convinced during the course of treatment that the
patient is a menace to himself or others and the
patient refuses to permit the
psychotherapist to make the
disclosure necessary to prevent the threatened danger.' (Italics added.)
--------------------FOOTNOTE END--------------------------
Our sympathy for the victim of
violent acts of the mentally ill should not blind us to the needs of the mentally ill
or to the ultimate goal of reducing the level of
violence. Because
[**48] the majority's holding will severely impair the ability of the
doctor to treat effectively, resulting in a
net increase in
violence, I cannot concur in the majority's new rule.
II
DUTY OF POLICE TO
WARN
Although the police defendants get lost in the course of the majority's
opinion, the holding concludes the officers may also be liable for failing to
warn.
The ground for imposing liability on the
police officers is unclear. The holding is so broad it may be understood, in light of the
facts of this case, as meaning that the mere release of Poddar gave rise to the
duty to warn. The majority not only imposes a new
duty on
police officers, but may also have held that jail and prison officials must now
warn of potential
violence whenever a prisoner is released pursuant to bail order, parole, or completion
of sentence.
It is disturbing that the majority should take, by ambiguous statement and
without discussion, the very broad step of imposing on a peace officer the near
impossible
duty to notify potential victims of threatened
violence. The majority states that
duty is dependent on considerations of policy--but the policy goes unexplained.
III
CONCLUSION
It appears the
[**49] tragedy of Tatiana Tarasoff has led the majority of our court to unfairly
penalize the
professions of
psychiatry and law enforcement, to the detriment of society.
I would permit plaintiffs to proceed against the
psychiatrists for
failure to warn on the theory the
psychiatrist's conduct in terminating treatment increased the risk of
violence. Absent such conduct, I would disallow a
cause of action for
failure to warn based solely on the existence of the prior psychiatrist-patient relationship.
Finally, I conclude no justification has been shown for imposing the inordinate
duty to warn on the
police officers.
McCOMB, J., concurs.
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