Potential erosion of psychotherapist-patient privilege beyond California: dangers of "criminalizing" Tarasoff.

Abstract

The "dangerous patient exception" to psychotherapist-patient privilege, adopted almost a decade before the celebrated case of Tarasoff v. Regents of the University of California (1976), was mentioned in a footnote to that decision in the context of an analogy. Although intended to permit testimony in civil commitment proceedings, this exception has been used to "criminalize" the Tarasoff duty in California. California courts eroded the privilege initially primarily to permit victims to sue psychotherapists and later to require psychotherapists to testify against their patients in criminal proceedings and appear to have confused evidentiary privilege and confidentiality. If consistent, similar reasoning in California in the future should allow therapists to testify against their patients if they were civilly committed in the past for dangerousness and attorneys to testify against their clients in criminal cases if at some earlier time they believed their clients represented a risk of future harm. Although most other jurisdictions may not word their privilege exceptions for civil commitment in the same way as California, most states have some type of privilege exception for civil commitment that could allow for such an interpretation. The United States Supreme Court in Jaffee v. Redmond (1996) found a psychotherapist-patient privilege, but stated in a footnote that an exception to the privilege would exist if a serious threat of harm to the patient could be averted only by means of disclosure by the therapist. Other jurisdictions have begun to consider these issues. Rather than being unique to California, similar reasoning could lead to the "criminalization" of Tarasoff in other jurisdictions and thereby compel therapists outside California to testify against their patients in criminal proceedings.