It's been a privilege: advising patients of the Tarasoff duty and its legal consequences for the federal psychotherapist-patient privilege.

State laws modeled on Tarasoff v. Regents of the University of California require psychotherapists to warn potential victims or law enforcement when treating dangerous patients who make serious threats of harm to another person. In practice, many psychotherapists advise their patients who make such threats about their duty under these Tarasoff-model laws. Although they are not required to make these advisories by law, psychotherapists generally assume that they also have a concomitant ethical duty to advise their patients that such threats will not be kept confidential, as their communications normally would be. This Note looks at how these advisories affect the status of privilege for subsequent threatening statements relayed to a psychotherapist. It explores the opposing views in the federal circuit courts regarding whether such an advisory precludes the existence of privilege for subsequent statements, or whether the advisory operates as a waiver to the privilege. This Note argues that threats communicated to a psychotherapist after an advisory about a psychotherapist's Tarasoff duty cannot be considered privileged if the patient intended for the threat to be passed on to a third party. Psychotherapists must now be aware of the possible legal consequences regarding the patients' diminished expectation of confidentiality and lack of privilege following such advisories. In order to act in their patients' best interest, psychotherapists should educate themselves about the scope of a Tarasoff duty in their applicable states and should consider alternative intervention techniques that could reduce dangerous patients' risk of harm. Psychotherapists should continue to follow professional ethical guidelines about advising patients of the limits of confidentiality, but implement techniques that evidence the patients' true intent about confidentiality, in order to bolster the patients' possible privilege claims later on and minimize harm to the treatment relationship.

The clinician's duty to protect third parties.

The jurisprudence on a clinician's duty to protect third parties is complex and continues to evolve. Clinicians should familiarize themselves with civil commitment laws, privilege and confidentiality statutes, protective disclosure statutes, reporting requirements, and the Tarasoff Principle, as they would case law in the state in which they practice. Ethical codes and ethical position statements provide useful guidance. In their practices, clinicians should endeavor to conduct careful assessments for diagnoses, the patient's current situation, and dangerousness. Traditional clinical, therapeutic, and instructional measures should always be considered first, and reasonable efforts should be made to enlist the patient's cooperation. Occasionally, however, hospitalization or protective disclosures must be made. The proposed algorithm should be of help to the clinician in making critical decisions regarding hospitalization and disclosures to protect others. In following this decision tree, four questions are of key importance: (1) Is the patient dangerous to others?; (2) Is the danger due to serious mental illness?; (3) Is the danger imminent?; and (4) Is the danger targeted at identifiable victims? This algorithm is intended to assist in the application of, and should not replace, clinical judgment.