The dangerous patient exception to the psychotherapist-patient privilege: the Tarasoff duty and the Jaffee footnote

With the U.S. Supreme Court's 1996 decision in Jaffee v. Redmond, all U.S. jurisdictions have now adopted some form of evidentiary privilege for confidential statements by patients to psychotherapists for the purpose of seeking treatment. The majority of states, following the decision of the Supreme Court of California in Tarasoff v. Regents of the University of California, have also adopted some form of duty by psychotherapists to breach confidentiality and warn potential victims against foreseeable violence by their patients. Largely unresolved is whether there should be a dangerous patient exception to the evidentiary privilege parallel to the Tarasoff exception to confidentiality. This Article argues that exception to the evidentiary privilege should be evaluated separately from the exception to confidentiality. Whether or not a Tarasoff duty to warn existed at an earlier time, exception to the evidentiary privilege should be made only where psychotherapists' testimony is necessary to prevent future harm to patients or identified potential victims. Applying this standard, the dangerous patient exception generally would not apply in criminal actions against patients, but would apply only in proceedings for the purpose of protecting patients or third parties, such as restraining order hearings or proceedings to hospitalize patients.     

Limiting the psychotherapist-patient privilege: the therapeutic potential

The author first explores the law of the psychotherapist-patient privilege along with the traditional rationale for the privilege. The results of studies challenging the assumptions upon which the privilege rests are summarized. Finally, the potential therapeutic advantages are explored. The author suggests that the absence of an absolute privilege might in fact prevent harmful behavior. Those patients who communicate to their therapists the desire or intent, for example, to commit a crime, might not act on their urges for fear of disclosure of the communication in a future criminal proceeding.     

Waiver of the psychotherapist-patient privilege: implications for child custody litigation

The psychotherapist-patient privilege, rooted in both common and statutory law, is predicated upon the public policy goal of protecting the reasonable expectation of privacy of individuals seeking psychotherapy. The privilege is not absolute, however. State and federal courts are far from uniform in determining how and when the privilege should be waived, in whole or in part, through implication, inadvertence or the affirmative action of the parties. In the family law context, the law that has evolved around the exercise of this privilege is even more complex as the needs of children add another wrinkle to the goal of balancing the imperative of confidentiality with the need for useful information that may be provided.     

A proposed exception to the AIDS confidentiality laws for psychiatric patients

The authors offer psychotherapists a proposed exception to strict acquired immune deficiency syndrome (AIDS)-related confidentiality laws. The proposal is based on previously established exceptions to the psychotherapist-patient privilege. The recommended breach of confidentiality applies only to cases that meet all of the following criteria: (1) A patient knows that he or she has a human immunodeficiency virus (HIV) positive blood test and has been informed of AIDS-related safety precautions, (2) the HIV-positive patient has a mental disorder, and (3) it is reasonable to believe that the mental disorder has significantly impaired or may significantly impair the patient's ability and behavior to follow AIDS-related safety precautions.     

Dangerous patients and duties to warn: a European human rights perspective

The recent case of David Bradley, who shot and killed four members of his family after telling his doctor he 'wanted to kill someone', has raised the question of whether a healthcare professional could ever be held liable for failing to take steps to constrain a potentially dangerous patient. Until recently, it was considered that the United Kingdom courts would be reluctant to impose a duty to protect third parties. However, the European Court of Human Rights' decision in Osman v UK--while not directly concerning healthcare professionals--has opened the door for just such a duty. When this duty will arise, and how it can be discharged, remain challenging questions. Furthermore, healthcare professionals face the unenviable task of balancing competing duties, in which the rights--and safety--of their patients must also be borne in mind.