The Psychiatrist's Dilemma: Protect the Public or Safeguard Individual Liberty?

• Publication year: 1987
• Citation: Vol. 11 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 11, No. 2WINTER 1988

The Psychiatrist's Dilemma: Protect the Public Or Safeguard Individual Liberty?

Fay Anne Freedman(fn*)

More than a decade has passed since the landmark case of Tarasoff v. Regents of the University of California.(fn1) In Tarasoff, the California Supreme Court ruled that a psychiatrist is under a duty to use reasonable care to warn an intended victim of a patient's dangerous condition if the psychiatrist knows or should have known that the patient presents a serious danger of violence to that particular individual.(fn2) Throughout the years, courts have increasingly relied on Tarasoff as support for imposing a duty on mental health professionals to protect third parties. Washington law,(fn3) however, takes Tarasoff an unreasonable step further, requiring a psychiatrist to take precautions to protect anyone who might foreseeably be endangered by his patient's mental problems. This duty includes the duty to protect the public at large from an individual's dangerous propensities, including those that are drug-related.(fn4)

In Petersen v. State,(fn5) the Washington Supreme Court, while reaffirming the current law which requires those with special powers, skills, and knowledge gained through the doctor-patient relationship to discharge a legal duty to protect, dramatically widened the scope of a psychiatrist's responsibility to include a duty to protect unintended or unidentifiable victims. By expanding this duty, the court recognized that it confronted difficult issues of first impression for the state. These issues included the nature of the psychiatrist-patient relationship, the effect of a psychiatrist's decision to release his patient from involuntary civil commitment, and the duty a psychiatrist owes to third parties for the behavior of his patient.

This Article argues that the psychiatrist's(fn6) dual duty of protecting others, while effectively treating patients, places the psychiatrist in a dilemma.(fn7) Petersen's expansion of the law exacerbates this dilemma by extending the duty of a psychiatrist to protect identifiable victims to include a duty to protect the public at large. Ultimately, this dilemma exposes the disparity between the goals of the mental health and legal communities: fostering of individual freedom(fn8) by safeguarding against unfounded use of the civil commitment process, and protecting the public. Unless the law of Petersen and social policy are reconciled, legislative mandate(fn9) underlying the State's civil commitment process will be rendered impotent. This is in spite of the Washington legislature's recent attempt to limit Petersen by amending the relevant mental health laws.(fn10) There is reason to believe, however, that this new legislation will do nothing to cure the effect of Petersen, or to resolve the psychiatrists' conflict of duties. Thus, the result will be unnecessarily increased use by psychiatrists of their authority to involuntarily commit, a lessening of personal liberty rights, and a growing and overburdened civil commitment system.(fn11)

This Article argues that the duty of psychiatrists to protect, as articulated by the Petersen court and left unchanged by the Washington legislature, should be imposed only in specified circumstances. Such circumstances include situations where the psychiatrist has actual knowledge(fn12) of a patient's dangerousness, or where a notice or warning can be made to an identifiable victim. When those circumstances are not present, however, there is no justification for placing a psychiatrist in the dilemma of having to choose confinement over risk.(fn13)

Part I of this Article traces the development and expansion of tort rules governing psychiatric liability and the mental health field. Part II briefly examines the concept of involuntary civil commitment, generally, and in Washington. Part III presents a factual overview and analysis of Petersen v. State, followed by a criticism of the court's decision and legislative response.

I. Development and Expansion of Tort Rules

A. Common Law Origins of the Duty to Protect

At common law, there was no duty to control the conduct of another or to protect those who were endangered by another's conduct.(fn14) This rule of no duty to control or protect originated in the common law distinction between action and inaction, or "misfeasance" and "nonfeasance."(fn15) The common law provided that one who injured another by a positive, affirmative act was held liable, while one who did nothing escaped liability, despite the harm resulting from inaction.(fn16)

Exceptions to this rule were made, however, when some type of special relationship existed between the person whose conduct posed the harm and the person threatened.(fn17) Thus innkeepers were held to have an obligation toward their guests,(fn18) employers toward their employees,(fn19) schools toward their pupils,(fn20) and businesses toward their customers.(fn21) The duty imposed was one of reasonable care under the circumstances; it did not require a party to take action until the party knew, or had reason to know a person was threatened.(fn22)

Case law and statutes gradually extended the special relationship exception to include the duty to control the conduct of third persons when a special relationship existed between the actor and the third person. The duty arose when an individual had control or custody of another, and knew, or had reason to know of the possibility of harm to other parties.(fn23) For example, courts imposed upon parents a duty to protect a babysitter by warning of their child's violent propensities; likewise, the state, to discharge its duty to protect, must warn guardians of a ward's dangerous tendencies.(fn24) The courts have extended this duty and imposed liability even where there was no relationship between the actor and the person threatened.(fn25)

The physician-patient relationship was a natural area for extending the duty to protect. Thus, a physician has an affirmative duty to protect third parties from dangers created by their patient.(fn26) The basis for this duty is the special relationship between the physician and patient which consists of the doctor's right of custody over the patient,(fn27) and of the professional knowledge gained in treating or evaluating a patient.(fn28) Ample precedent now exists in which the special relationship has been used to impose liability on doctors and health-care institutions.(fn29)

In light of the relationship that develops between doctor and patient, and the status society attributes to health care professionals,(fn30) it is no surprise that most courts have extended the duty to protect to psychiatrists. With their superior knowledge, psychiatrists are expected to identify individuals who are dangerous to themselves or others and to recommend preventive action.(fn31) This occurs both in the mental health context and within the judicial system where psychiatrists are called upon to assist in making decisions about culpability, competence, incarceration, or rehabilitation.(fn32)

B. Development of the Psychiatrist's Duty to Protect

The duty of a psychiatrist to protect others from a patient's dangerousness was first articulated in Tarasoff v. Regents of California.(fn33) The parents of a woman brought suit against the University of California when their daughter was killed by a patient under the care of a psychologist employed by the University. The patient had told the psychologist that he was going to kill a girl.(fn34) Although she was unnamed, the Tarasoffs' daughter was readily identifiable as the victim.(fn35) The psychologist gave no warning to the victim or her family.(fn36)

The victim's parents sued the psychologist and the University alleging the failure to exercise reasonable care in protecting their daughter.(fn37) This alleged breach of the psychiatrist's duty to protect resulted from both the University's failure to commit the patient and the failure to provide any warning to the victim.(fn38)

In holding that a duty to protect existed under the circumstances, the court applied an exception to the common law rule that one person owed no duty to control the conduct of another.(fn39) The court found that an exception to the common law rule exists in cases when the defendant stands in some special relationship to either the person whose conduct needs to be controlled, or in a relationship to the foreseeable victim(fn40) of that conduct.(fn41) Thus, it was the nature of the relationship between the physician and patient that created the duty owed by the therapist to a third party.(fn42)

In enunciating this duty to protect, the Tarasoff court recognized the existence of a conflict in public policy. First, there was an important public interest in supporting effective treatment of mental illness, protecting the rights of patients' privacy, and safeguarding the confidential character of the psychotherapists' communications.(fn43) Second, there was an important public interest in protecting society by warning of impending violence.(fn44) The court balanced these countervailing concerns by relying on the state's evidence code,(fn45) which provides a limited exception to the psychotherapist-patient privilege, allowing disclosure of communication necessary to protect third parties from a patient's dangerousness.(fn46) Thus, the court...