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Advising Patients of the Tarasoff Duty and Its Legal Consequences for the Federal Psychotherapist-Patient Privilege

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Advising Patients of the Tarasoff Duty and Its Legal Consequences for the Federal Psychotherapist-Patient Privilege Fordham Law Review Volume 78 Issue 2 Article 12 2009 It's Been a Privilege: Advising Patients of the Tarasoff Duty and its Legal Consequences for the Federal Psychotherapist-Patient privilege Elisia Klinka Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Elisia Klinka, It's Been a Privilege: Advising Patients of the Tarasoff Duty and its Legal Consequences for the Federal Psychotherapist-Patient privilege, 78 Fordham L. Rev. 863 (2009). Available at: https://ir.lawnet.fordham.edu/flr/vol78/iss2/12 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. It's Been a Privilege: Advising Patients of the Tarasoff Duty and its Legal Consequences for the Federal Psychotherapist-Patient privilege Cover Page Footnote A sincere thank you to my friends and family for their positive encouragement and endless, brimming cups of coffee. Special gratitude is due to Sarah DePanfilis, Elysa Goldberg, Carla Pasquale, Professor Andrew Sims, and of course, my parents, Alana, Melissa, and Keith. Lastly, thank you to my inspiring mentor, attorney Catherine S. Nietzel. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol78/iss2/12 IT'S BEEN A PRIVILEGE: ADVISING PATIENTS OF THE TARASOFF DUTY AND ITS LEGAL CONSEQUENCES FOR THE FEDERAL PSYCHOTHERAPIST-PATIENT PRIVILEGE Elisia Klinka* State laws modeled on Tarasoff v. Regents of the University of California requirepsychotherapists to warn potentialvictims 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 regardingwhether 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 regardingthe 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 dangerouspatients' 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. * J.D. Candidate, 2010, Fordham University School of Law. A sincere thank you to my friends and family for their positive encouragement and endless, brimming cups of coffee. Special gratitude is due to Sarah DePanfilis, Elysa Goldberg, Carla Pasquale, Professor Andrew Sims, and, of course, my parents, Alana, Melissa, and Keith. Lastly, thank you to my inspiring mentor, attorney Catherine S. Nietzel. FORDHAM LA W REVIEW [Vol. 78 TABLE OF CONTENTS IN TRO D U CTION .......................................................................................... 865 I. FEDERAL PSYCHOTHERAPIST-PATIENT PRIVILEGE AND PSYCHOTHERAPISTS' TARASOFF DUTY .......................................... 868 A. Development of a FederalPsychotherapist-Patient P rivilege .................................................................................. 868 1. Privilege in G eneral ........................................................... 868 2. Waiver in G eneral .............................................................. 870 3. Jaffee v. Redmond: Construction of a Federal Psychotherapist-Patient Privilege ...................................... 872 4. Application of the Federal Psychotherapist-Patient Privilege in Case Law ....................................................... 874 a. PrivilegeProtects Patients' Confidential Com m unications.......................................................... 874 b. Waiver Doctrine Applied to the Psychotherapist- PatientPrivilege .......................................................... 880 5. Determining the Scope of the Federal Psychotherapist- Patient Privilege: Exceptions .......................................... 881 B. Psychotherapists' Tarasoff Duty To Warn Third Parties....... 883 1. Tarasoffv. Regents of the University of California........... 883 2. State Tarasoff-Model Laws ................................................ 885 3. Advising Patients of the TarasoffDuty: Inform ed C onsent? .................................... .. .. .. .. .. .. 888 a. The Timing of a Psychotherapist'sAdvisory to Patients About a Tarasoff Duty ................................... 891 b. The Specificity of an Advisory to Patients and Its Effect on the Treatment Relationship .......................... 892 i. The Effect of an Advisory to Patients That a Psychotherapist Will Issue a TarasoffWarning ...... 894 ii. The Effect of an Advisory to Patients About the Status of Privilege .................................. 896 II. CIRCUIT SPLIT: IS A DANGEROUS PATIENT'S THREAT PRIVILEGED IF THE PATIENT WAS ADVISED OF THE PSYCHOTHERAPIST'S TARASOFF D UTY? ...................................... .. .. .. .. .. .. .. 902 A. Circuit Opinions: Dangerous-PatientException Allows a Psychotherapist'sTestimony, Regardless ofAdvising the Patientof the Tarasoff D uty .................................................... 903 1. Tenth Circuit: United States v. Glass................................ 904 2. Ninth Circuit: United States v. Chase (Concurring O pinion) ............................................................................ 905 3. Application of the Dangerous-Patient Exception to Privilege in Case Law ....................................................... 907 B. Circuit Opinions: Even After Advising Patient of a Psychotherapist'sTarasoff Duty, a Psychotherapist's 2009] PSYCHOTHERAPIST-PA TIENT PRIVILEGE Testimony Is Barred Because a Patient'sThreat Is Still P rivileged................................................................................ 9 10 1. Sixth Circuit: United States v. Hayes ................................ 910 a. Sixth Circuit: No Dangerous-PatientException to P rivilege ...................................................................... 9 11 b. Sixth Circuit: A Patient'sThreat Communicated to a PsychotherapistIs Privileged,Even After an Advisory About a Tarasoff Duty .................................. 912 2. Ninth Circuit: United States v. Chase (Majority O pinion) ............................................................................ 9 13 a. Ninth Circuit: No Dangerous-PatientException to P rivilege ...................................................................... 9 14 b. Ninth Circuit: A Patient's Threat Communicated to a PsychotherapistIs Privileged,Even After an Advisory About a Tarasoff Duty .................................. 915 C. Circuit Opinions: Testimony Allowed Because a Patient's Threat Communicatedto a PsychotherapistIs Not PrivilegedAfter an Advisory A bout a Tarasoff Duty .............. 916 1. Opinions Prior to United States v. Auster .......................... 917 a. Sixth Circuit: United States v. Hayes (Dissenting Op inion) ...................................................................... 9 17 b. Ninth Circuit: United States v. Chase (ConcurringOpinion) ................................................. 918 2. Fifth Circuit: United States v. Auster ................................ 919 3. Challenges to A uster .......................................................... 923 III. RECOMMENDATION: No PRIVILEGE SHOULD BE RECOGNIZED FOR THREATS DELIVERED TO A PSYCHOTHERAPIST AFTER A PATIENT IS ADVISED OF A TARASOFF DUTY ................................... 924 A. PrivilegeDoes Not Exist Under These Circumstances, as a M atter of Law .......................................................................... 925 B. Ways To Minimize Harm to the Psychotherapist-Patient Treatment Relationship........................................................... 928 C O N CLU SIO N ............................................................................................. 93 1 INTRODUCTION If you reveal your secrets to the wind you should not blame the wind for revealing them to the trees.l Heed this advice: Perhaps you should not assume that everything you tell your therapist will be kept in confidence. Laws dictate otherwise. In fact, your therapist may even tell you this directly. 2 Most psychotherapists 1. KAHrL GIBRAN, SAND
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