Trowbridge Foundation: Current Article in Full

Tarasoff Law in Washington: Duty to Protect

Brett C. Trowbridge, Ph.D., J.D.

This article supported by The Trowbridge Foundation

Originally published in The Washington Psychologist, August 2000, Volume 54

As we are all aware, Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425 (1976), is the seminal case regarding the duty of a psychiatrist or psychologist to protect third parties against the conduct of a patient. The Tarasoff court held the patent-therapist relationship was sufficient to support the imposition of an affirmative duty to warn on the therapist, ruling that when a therapist determines (or should have determined) that a patient presents a serious danger of violence to another there is an obligation to use reasonable care to protect the intended victim against such danger. Discharge of the duty may require the therapist to warn the intended victim and/or to notify law enforcement officials.

Subsequent California decisions have limited the scope of the therapist's duty to readily identifiable victims, but the courts of other states have only required that the therapist reasonably foresee that the risk engendered by the patient's condition would endanger others. Washington follows the latter approach, concluding that therapists here have a duty to protect anyone who might forseeably be endangered by one of our patients. In Petersen v. Washington, 100 Wa.2d 421 (1983) the Washington Supreme Court held Western State Hospital had a duty to protect the public when releasing involuntarily detained patients. In that case a patient who had been discharged from the hospital after a fourteen day involuntary commitment caused an automobile accident five days after his release which injured a citizen, Petersen. The trial jury found that the Western State psychiatrist's decision not to petition for an additional involuntary commitment was the "proximate cause" of Petersen's injuries, and that failure to do so was "gross negligence", and the Washington Supreme Court affirmed the decision, holding that the State had a duty to protect Petersen, and that the releasing decision was not a discretionary act immune from liability.

In Bader v. State, 43 Wa.App. 223 (1986) the court held a mental health clinic could be liable for a patient's murder of a neighbor where the clinic knew of the patient's dangerousness, his failure to take his medication, his failure to keep his appointments with the clinic, and his presentation of paranoid behavior. In a subsequent case, Taggart v. Washington, 118 Wa.2d 195 (1992), the Washington Supreme Court made it clear that the decision in Petersen was not limited to cases in which the patient was hospitalized. In Taggart the court stated, "The duty requires that whenever a psychiatrist determines, or according to the standards of the profession should have determined, that a patient presents foreseeable dangers to others, the psychiatrist must take reasonable precautions to protect against harm. Whether the patient is a hospital patient or an outpatient is not important."

Furthermore, civil commitment alone does not discharge the duty! RCW 71.05.120 provides:

"This section does not relieve a person from...the duty to warn or to take reasonable precautions to provide protection from violent behavior where the patient has communicated an actual threat of physical violence against a reasonably identifiable victim or victims. The duty to warn or to take reasonable precaution from violent behavior is discharged if reasonable efforts are made to communicate the threat to the victim or victims and to law enforcement personnel."

In Noonan v. State, 53 Wn.App. 558 (1989), however, the court declined to impose liability on a provider when that provider had not been put on notice "either by his conduct or his record" of the dangerous propensity of its patient, holding that in that case there was no duty to take steps to protect third parties. A Federal case from the Ninth Circuit (the Circuit that has jurisdiction over Federal cases arising in Washington), however, makes it clear that if a provider could have asked for records which would have revealed the patient's violent propensities, but failed to ask for those records, the provider may still be held liable as he "should have known" of the violent propensities. See Jablonski ex rel. Pahls v. U.S., 712 F.2d 391 (1983).

The elements required before a therapist may be found liable appear to be: (1) a psychotherapist-patient relationship existed, (2) the psychotherapist knew or should have known of the violent tendencies of the patient, (3) the victim was a "foreseeable" victim of the patient, (4) the psychotherapist did not take the necessary steps to discharge his duty to protect, and (5) that failure was the proximate cause of the victim's injuries.