Bitter Medicine: A Critical Look at the Mental Health Care Provider’s Duty to Warn in Texas

A quarter of a century has passed since Tarasoff v. Regents of the University of California first imposed a duty of care upon mental health care professions for third parties. In Tarasoff, the California Supreme Court held that once a therapist determines, or reasonably should have determined, a patient poses a significant danger of violence to others, the therapist bears a duty to exercise reasonable care to protect the foreseeable victim from that danger. Tarasoff has since been widely accepted by both legislatures and courts as the basis for imposing the duty of reasonable care upon mental health care professionals to provide a warning to likely victims of their dangerous patients. While most states have adopted some variation of the Tarasoff duty to warn, the Texas Supreme Court recently has declined to impose such a duty. This refusal has been steadfast even though the mental health care professional-patient relationship is the type that has traditionally given rise to such a duty and the imposition of such a liability would advance the public policy goal of preventing harm to foreseeable victims. A statutory recognition of such a duty in Texas would resolve the confusion regarding the duty owed by the mental health care professional to third parties. Specifically, a statute, thorough in its consideration of the issue, would provide clear guidelines as to when a therapist’s disclosure, in an effort to protect a third party, violates the physician-patient privilege. Analysis of the Tarasoff duty, history, and legacy shows that legislation that would statutorily impose a duty upon mental health care providers to warn third parties is long overdue in Texas