Status of the Psychiatric Duty to Protect, Circa 2006
Soulier, Matthew F
Beck, James C
The journal of the American Academy of Psychiatry and the Law 2010; 38(4): 457-73
States have responded to the Tarasoff duty to protect by passing statutes in all but 13 states. Such statutes either mandate or permit warning a potential victim. In this study, we analyzed 70 Tarasoff-related cases from a Westlaw-based search between 1985 and 2006. We determined the extent to which clinicians are being held liable for breach of the Tarasoff duty in statutory and nonstatutory states, whether there is language in the statutes that permits warning compared with statutes that mandate warning, and whether recent Tarasoff decisions better reflect the inherent ambiguities in clinical mental health practice. We found 70 appellate cases, and only 6 were plaintiff verdicts. Statutes that mandate warning a victim appear to be the most protective of clinicians. Seven of the 17 remanded cases came from the jurisdictions with permission-to-warn statutes, suggesting that permission rather than a strict mandate to warn may increase the liability for clinicians. Notwithstanding the language of statutes, the protections from Tarasoff are not extended to poor clinical judgment, particularly in the controlled inpatient setting.
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