Back to the past in California: a temporary retreat to a Tarasoff duty to warn

Abstract

The original Tarasoff decision created a duty for California psychotherapists to warn potential victims of their patients. After rehearing the matter two years later, the California Supreme Court, in the landmark second Tarasoff decision, changed the duty to warn to a duty to protect potential victims, with warning as only one of the options for discharging that duty. Despite this change, the Tarasoff duty frequently was referred to erroneously as a duty to warn. This misunderstanding and an ambiguous California immunity statute culminated in "simplified" jury instructions and two appellate court decisions in 2004 in which it was assumed without question that there was a duty to warn, with liability for not doing so regardless of rationale. As a result of persistent lobbying by the California Psychiatric Association and other mental health groups, a recent bill corrected the problem created by the courts, returning the Tarasoff duty to a duty to protect.