The Psychotherapist\u27s Duty to Protect the Public: The Appropriate Standard and the Foundation in Legal Theory and Empirical Premises

Several states have established a duty on the part of psychotherapists to protect the public from harm caused by their dangerous patients. The Supreme Court of California initially articulated this duty in the widely discussed Tarasoff case where the court stated: When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. This discharge of this duty may require the therapist ... to warn the intended victim or others... to notify police, or to take whatever other steps are reasonably necessary... Recent cases have sought an appropriate standard by which to measure this duty, Some courts have adopted a standard which holds that the duty attaches only when the patient makes specific threats toward identifiable victims (STIV). The two most recent major decisions, however, have applied the zone of danger (ZOD) test. According to this standard, the duty applies whenever the patient poses a foreseeable danger and it extends to all victims in the zone of danger. These courts have explicitly rejected the STIV standard on the basis of legal theory and policy analysis. While these two lines of cases differ in that the former endorses the STIV standard while the latter applies the ZOD test, they agree insofar as all accept the underlying duty of therapists to protect the public from their patients. This Article will assume for the sake of argument that the Tarasoff duty applies and that some duty to protect third parties is justified. It will examine the rationales for the STIV and ZOD standards as provided by the recent court opinions, and it will argue that: (1) Schuster and Hamman both misconstrue the question as a choice between STIV and ZOD as alternative standards for the same Tarasoff duty, (2) rather than competing tests for the same purpose, these two standards address two different duties that have developed from the Tarasoff line of cases, (3) under certain circumstances, both the STIV and the ZOD standards might appropriately apply, (4) evaluation of the STIV standard turns primarily on empirical premises that cannot be resolved by appeal to legal theory or policy analysis alone; contrary to the recent court opinions, the ZOD and STIV standards share a common foundation in legal theory and policy, and (5) both the courts and the relevant professions should construe their respective responsibilities regarding these issues differently than they have in the past