APA Signs Onto Amicus Brief Supporting Confidentiality

APA has signed on to an amicus curiae brief with the California Psychiatric Association and the California Association of Marriage and Family Therapists in a case before the California Supreme Court with important implications for patient confidentiality and clinicians’ liability.

APA is concerned that a ruling in favor of the plaintiff would change the existing California standard (the so-called Tarasoff rule) requiring action when “a patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.”

The case, Rosen v. Regents of the UCLA, arose when Damon Thompson, a student treated by UCLA’s counseling service, attacked and stabbed a fellow student, Katherine Rosen.

Under California law, a therapist has a “duty to protect” a potential victim if the patient makes a reasonably identifiable threat to harm a specific person.

Steven Kenny Hoge, M.D.

“If the patient makes a threat, the therapist takes action,” said forensic psychiatrist Steven Kenny Hoge, M.D., chair of APA’s Council on Psychiatry and the Law. This approach is realistic, given that prediction of specific violent acts remains an uncertain art, he said.

The therapist also can use information given by third parties, like a patient’s family, as the source for a warning, said Hoge. The duty is discharged by informing the intended victim and/or law enforcement officials.

However, according to testimony in the original trial, Thompson made no such identifiable threats or even indicated any intention to commit violence to his therapist, Nicole Green, Ph.D.

Rosen sued Green and the university and the trial judge agreed, stating that Green “may have voluntarily assumed the duty” to protect Rosen simply by providing Thompson with mental health care. Rosen’s lawyers, in essence, now argue that the overall behavior of the patient rather than a specific threat should be taken as “communication” of a threat, placing liability onto the therapist.

The judge also said that the immunity clause of the relevant California statute—which rules out monetary liability or even any “cause of action” against a therapist without a specific threat—did not apply in this case.

The judgment in favor of Rosen was overturned on appeal, but Rosen has now appealed to the Supreme Court of California.

“APA usually gets involved with cases when they rise above the state level, but this case had the potential to have national significance so we got involved now,” said Marvin Swartz, M.D., a professor of psychiatry and behavioral sciences at Duke University School of Medicine and chair of APA’s Committee on Judicial Action. “If the plaintiff prevails, it could have a chilling effect on the field of psychiatry because it would eliminate any expectation of confidentiality in the therapeutic relationship.”

Basing the therapist’s duty to protect not on a threat to a single individual but rather to the general public, given only nonspecific talk of violence, would thus take precedence over patient confidentiality and would likely discourage patients from seeking care, said Swartz.

Patients with thoughts of violence would be unlikely to seek treatment if they thought they might be turned over to authorities, and psychiatrists or other therapists would hesitate to take on such patients if they were then subject to liability for any later violent acts.

Tangentially, a ruling for the plaintiff might also expand liabilities for universities or even affect access to higher education for people with a mental disorder, said Hoge.

Given that confidentiality is the key to the patient-psychiatrist relationship, APA and its allies argue that the current law for the protection of identifiable victims of potential violence by a patient is appropriate and should not be expanded. ■