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Tarasoff and Duty to Protect in North Carolina By Tarasoff and Duty to Protect in North Carolina By: A. Keith Mobley, Eugene Naughton Mobley, A. K., & Naughton, E. (2011). Tarasoff and duty to protect in North Carolina. NC Perspectives, 4, 5-14. Made available courtesy of North Carolina Counseling Association (NCCA): http://nccounselingassociation.org/publications/journal/ ***© NCCA. Reprinted with permission. No further reproduction is authorized without written permission from NCCA. *** ***Note: Full text of article below NC Perspectives • Fall 2011• Volume 4 Tarasoff and Duty to Protect in North Carolina A. Keith Mobley, PhD, LPC and Eugene Naughton, JD A counselor’s duty to warn and protect third parties of threats made by their clients has been a complex, frightening, and confusing topic since the landmark Tarasoff case in 1976. Although the implications of this case has been interpreted by a variety of state courts and legislatures, the tension between a counselor’s ethical and legal re- sponsibilities creates consternation for many counselors in North Carolina. This arti- cle reviews the background and implications of the duty to warn concept to counsel- ors specifically in the state of North Carolina and provides both proactive and reac- tive suggestions for managing encounters with potentially violent clients. Keywords: duty to warn, confidentiality, ethics In 1976, the California Supreme Court and who do not fully understand the limits of handed down its landmark decision in Tarasoff confidentiality in their state (Walcott, Cerun- v. Regents of the University of California, and the dolo, & Beck, 2001), including those in North effects of that decision are still felt today Carolina. across the nation in both the legal and coun- The extensive implications of the Tarasoff seling professions. Because any case decided decision is further complicated by the fact that by a state or federal court can create legal rip- neither the North Carolina Court of Appeals ples that extend beyond the original jurisdic- (the highest court in the state) nor the state tion of the court, one state’s court could be legislature has squarely addressed the Tarasoff applied to another state’s cases. Conse- decision. Our intention with this article is to quently, courts, scholars, and mental health ease some of the confusion by revisiting what professionals have struggled to understand the the Tarasoff decision entails, how courts and implication of the case and its impact on the legislatures across the country digested Tara- daily practice of counseling in the years since soff, and how North Carolina has dealt with Tarasoff. This case was such an important one issues raised in that decision to date. We also that the crux of that decision – that a clinician hope to discuss the ethical and practical impli- has an overriding legal duty to break confiden- cations raised by Tarasoff and suggest how tiality when a client makes a viable threat counselors in North Carolina can avoid ethical against a third party – remains problematic for pitfalls that Tarasoff-like situations might raise many counselors who are untrained in the law and ensure they are implementing best- Dr. Keith Mobley is a Clinical Associate Professor and Clinic Director in the Department of Counseling and Educational Development at The University of North Carolina at Greensboro. He is both a Licensed Pro- fessional Counselor and Approved Clinical Supervisor. Eugene Naughton has a law degree and practiced in the DC Metro area for 12 years and is currently a child/adolescent clinician with Daymark Services in Lex- ington, NC. Correspondence concerning this article should be addressed to Dr. Keith Mobley at (336) 334- 5215 or at [email protected] 3 NC Perspectives • Fall 2011 • Volume 4 practices in a proactive fashion. Moore requested that the police commit Pod- The goal of this article is to help counsel- dar to a mental hospital for observation. Cam- ors in NC understand the history and the im- pus police stopped and questioned Poddar but plications of Tarasoff case in our state and to released him after he denied any violent inten- differentiate legal requirements from ethical tions. The police advised Poddar to stay away imperatives in similar situations to that case. from Tarasoff. Poddar had no further contact We first provide a background of the Tarasoff with the police or the University Health Ser- case, describe the implications of the case de- vices. Subsequently, Poddar began stalking cision across the nation, and then discuss the Tarasoff, and in October 1969, Poddar en- interpretation of the case in the state of North tered Tarasoff’s home and murdered her with Carolina. We conclude this article with sugges- a kitchen knife. He was convicted of second- tions of how a mental health professional in degree murder, a conviction later reduced to NC can be proactive in dealing with situations manslaughter and ultimately reversed on error. involving threats of harm made by a client and The victim’s parents brought suit against review steps one can engage in if risk of harm the University of California, the campus po- toward others is assessed. lice, and the University Health Service clini- cians. In their complaint, the Tarasoffs alleged The Tarasoff Decisions: Case that the University clinicians ―did in fact pre- and Analysis dict that Poddar would kill and were negligent in failing to warn‖ (Ref. 2, p. 345). The trial To most, the Tarasoff case is shorthand for court dismissed the suit, ruling that no law a simple ―duty to warn‖; however, it is much imposed a duty on a clinician to warn a third more. In fact, there are two Tarasoff decisions, party of a danger revealed during confidential and ―duty to warn‖ was only the first obliga- therapy. The Tarasoffs appealed and the case tion imposed on clinicians in California. As eventually worked its way to the California seen below, the California Supreme Court ex- Supreme Court. On December 23, 1974, the panded the obligations imposed on a clinician Court overturned the dismissal and remanded to a burdensome degree, with many other the case for trial against the University clini- courts following the California Supreme cians and police (Tarasoff v. Regents of the Univer- Court’s lead and applying the same obligations sity of California, 1974). In essence, the Court in their own states. imposed a new duty on clinicians to warn po- The facts are well known. In 1968, Prosen- tential victims of a threat posed by a client- jit Poddar, a graduate student at the University patient: of California, Berkeley, met fellow student Tatiana Tarasoff at a school dance. Poddar When a doctor or a psychotherapist, misinterpreted a casual kiss as evidence of a in the exercise of his professional skill serious relationship, and soon he became fix- and knowledge, determines, or should ated with Tarasoff, who rebuffed Poddar’s determine, that a warning is essential romantic overtures. Distraught, Poddar to avert danger arising from the medi- sought counseling at the University Health cal or psychological condition of his Services. During eight weeks of therapy, Pod- patient, he incurs a legal obligation to dar revealed to a staff psychologist, Dr. give that warning. (Ref .7, p. 555) Moore, that he intended to kill an unnamed woman who was readily identifiable as Tatiana Here, the Court assumed that a clinician Tarasoff. Moore consulted with supervisors could accurately discern if a threat was viable about a course of action and notified campus and foresee the harm. Thus, a clinician could police of the threat. In a letter to the police, be liable if he or she recognized the danger or 4 NC Perspectives • Fall 2011• Volume 4 should have recognized the danger and did Again, the Court required clinicians to accu- not warn the potential victim (Weinstock, rately discern the violent intent of their clients Vari, Leong, & Silva, 2006). and identify potential victims. How? The The Court’s decision (known as Tarasoff I) Court relied on clinicians to exercise a prompted strong responses from the mental ―reasonable degree of skill, knowledge, and health community. The American Psychiatric care ordinarily possessed and exercised by Association (APA) and other professional or- members of that professional specialty under ganizations filed with the Court an amicus curiae similar circumstances‖ (p. 349). brief (i.e., a petition from a third party in- How the Court arrived at its decision has tended to persuade or otherwise influence a been a matter of considerable debate, espe- court to act in a certain manner) and requested cially since the decision has broad implications a rehearing of the matter. In its brief, the APA for all mental health practitioners, regardless argued that clinicians could not accurately of the state in which they are licensed. Com- foresee future acts of violence, nor could they mentators have described the Court’s reason- guess all of the potential victims of the client- ing as ―convoluted‖ and ―opaque‖ (Herbert, patient. In addition, the APA argued that the 2002) and in disagreement with the basic ele- decision eroded the critical tenet of confiden- ments of tort law (i.e., civil, not criminal law) tiality, widely assumed to be a precondition (Walcott et al., 2001). for the development of a therapeutic rapport. At its heart, the Tarasoff II decision rests on In an unusual decision, the California Su- two fundamental ideas. First, the Court relied preme Court agreed to re-hear the case. In its on a quasi-Good Samaritan argument, holding second opinion (known as Tarasoff II, 1976), that it was good public policy for a clinician to the Court increased the scope of the clinician’s break confidentiality and warn a potential vic- liability, creating a ―duty to protect‖ in place tim where a client makes a viable threat of the narrower ―duty to warn.‖ Warning a against them.
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