|||SUPREME COURT OF CALIFORNIA
|||S.F. No. 23042
17 Cal. 3d 425; 551 P.2d 334; 131 Cal. Rptr. 14
|||July 1, 1976
|||VITALY TARASOFF ET AL., PLAINTIFFS AND APPELLANTS,
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL., DEFENDANTS AND RESPONDENTS
|||Superior Court of Alameda County, No. 405694, Robert L. Bostick, Judge.
|||George Alexander McKray for Plaintiffs and Appellants.
|||Robert E. Cartwright, Floyd A. Demanes, William H. Lally, Edward I. Pollock,
Leonard Sacks, Stephen I. Zetterberg, Sanford M. Gage, Robert O. Angle and
Melanie Bellah as Amici Curiae on behalf of Plaintiffs and Appellants.
|||Ericksen, Ericksen, Lynch, Mackenroth & Arbuthnot, Ericksen, Ericksen,
Lynch & Mackenroth, Ericksen, Ericksen, Lynch, Young & Mackenroth,
William R. Morton, Richard G. Logan, Hanna, Brophy, MacLean, McAleer &
Jensen, Hanna & Brophy and James V. Burchell for Defendants and Respondents.
|||Evelle J. Younger, Attorney General, James E. Sabine, Assistant Attorney
General, John M. Morrison and Thomas K. McGuire, Deputy Attorneys General,
John H. Larson, County Counsel (Los Angeles), Daniel D. Mikesell, Jr., Deputy
County Counsel, Richard J. Moore, County Counsel (Alameda), Charles L. Harrington,
Deputy County Counsel, Musick, Peeler & Garrett, James E. Ludlam, Severson,
Werson, Berke & Melchior, Kurt W. Melchior, Nicholas S. Freud and Jan.
T. Chilton as Amici Curiae on behalf of Defendants and Respondents.
|||Opinion by Tobriner, J., with Wright, C. J., Sullivan and Richardson,
JJ., concurring. Separate concurring and dissenting opinion by Mosk, J.
Separate dissenting opinion by Clark, J., with McComb, J., concurring.
[17 Cal3d Page 430]
|||On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff.*fn1
Plaintiffs, Tatiana's parents, allege that two months earlier Poddar confided
his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed
by the Cowell Memorial Hospital at the University of California at Berkeley.
They allege that on Moore's request, the campus police briefly detained
Poddar, but released him when he appeared rational. They further claim that
Dr. Harvey Powelson, Moore's superior, then directed that no further action
be taken to detain Poddar. No one warned plaintiffs of Tatiana's peril.
|||Concluding that these facts set forth causes of action against neither
therapists and policemen involved, nor against the Regents of the University
of California as their employer, the superior court sustained defendants'
demurrers to plaintiffs' second amended complaints without leave to amend.*fn2
This appeal ensued.
[17 Cal3d Page 431]
|||Plaintiffs' complaints predicate liability on two grounds: defendants'
failure to warn plaintiffs of the impending danger and their failure to
bring about Poddar's confinement pursuant to the Lanterman-Petris-Short
Act (Welf. & Inst. Code, § 5000 ff.) Defendants, in turn, assert that
they owed no duty of reasonable care to Tatiana and that they are immune
from suit under the California Tort Claims Act of 1963 (Gov. Code, § 810
|||We shall explain that defendant therapists cannot escape liability merely
because Tatiana herself was not their patient. When a therapist determines,
or pursuant to the standards of his profession should determine, that his
patient presents a serious danger of violence to another, he incurs an obligation
to use reasonable care to protect the intended victim against such danger.
The discharge of this duty may require the therapist to take one or more
of various steps, depending upon the nature of the case. Thus it may call
for him to warn the intended victim or others likely to apprise the victim
of the danger, to notify the police, or to take whatever other steps are
reasonably necessary under the circumstances.
|||In the case at bar, plaintiffs admit that defendant therapists notified
the police, but argue on appeal that the therapists failed to exercise reasonable
care to protect Tatiana in that they did not confine Poddar and did not
warn Tatiana or others likely to apprise her of the danger. Defendant therapists,
however, are public employees. Consequently, to the extent that plaintiffs
seek to predicate liability upon the therapists' failure to bring about
Poddar's confinement, the therapists can claim immunity under Government
Code section 856. No specific statutory provision, however, shields them
from liability based upon failure to warn Tatiana or others likely to apprise
her of the danger, and Government Code section 820.2 does not protect such
failure as an exercise of discretion.
|||Plaintiffs therefore can amend their complaints to allege that, regardless
of the therapists' unsuccessful attempt to confine Poddar, since they knew
that Poddar was at large and dangerous, their failure to warn Tatiana or
others likely to apprise her of the danger constituted a breach of the therapists'
duty to exercise reasonable care to protect Tatiana.
|||Plaintiffs, however, plead no relationship between Poddar and the police
defendants which would impose upon them any duty to Tatiana, and plaintiffs
suggest no other basis for such a duty. Plaintiffs have,
[17 Cal3d Page 432]
|||therefore, failed to show that the trial court erred in sustaining the
demurrer of the police defendants without leave to amend.
|||1. Plaintiffs' complaints
|||Plaintiffs, Tatiana's mother and father, filed separate but virtually
identical second amended complaints. The issue before us on this appeal
is whether those complaints now state, or can be amended to state, causes
of action against defendants. We therefore begin by setting forth the pertinent
allegations of the complaints.*fn3
|||Plaintiffs' first cause of action, entitled "Failure to Detain a
Dangerous Patient," alleges that on August 20, 1969, Poddar was a voluntary
outpatient receiving therapy at Cowell Memorial Hospital. Poddar informed
Moore, his therapist, that he was going to kill an unnamed girl, readily
identifiable as Tatiana, when she returned home from spending the summer
in Brazil. Moore, with the concurrence of Dr. Gold, who had initially examined
Poddar, and Dr. Yandell, assistant to the director of the department of
psychiatry, decided that Poddar should be committed for observation in a
mental hospital. Moore orally notified Officers Atkinson and Teel of the
campus police that he would request commitment. He then sent a letter to
Police Chief William Beall requesting the assistance of the police department
in securing Poddar's confinement.
|||Officers Atkinson, Brownrigg, and Halleran took Poddar into custody, but,
satisfied that Poddar was rational, released him on his promise to stay
away from Tatiana. Powelson, director of the department of psychiatry at
Cowell Memorial Hospital, then asked the police to return Moore's letter,
directed that all copies of the letter and notes that Moore had taken as
therapist be destroyed, and "ordered no action to place Prosenjit Poddar
in 72-hour treatment and evaluation facility."
[17 Cal3d Page 433]
|||Plaintiffs' second cause of action, entitled "Failure to Warn On
a Dangerous Patient," incorporates the allegations of the first cause
of action, but adds the assertion that defendants negligently permitted
Poddar to be released from police custody without "notifying the parents
of Tatiana Tarasoff that their daughter was in grave danger from Posenjit
Poddar." Poddar persuaded Tatiana's brother to share an apartment with
him near Tatiana's residence; shortly after her return from Brazil, Poddar
went to her residence and killed her.
|||Plaintiffs' third cause of action, entitled "Abandonment of a Dangerous
Patient," seeks $10,000 punitive damages against defendant Powelson.
Incorporating the crucial allegations of the first cause of action, plaintiffs
charge that Powelson "did the things herein alleged with intent to
abandon a dangerous patient, and said acts were done maliciously and oppressively."
|||Plaintiffs' fourth cause of action, for "Breach of Primary Duty to
Patient and the Public," states essentially the same allegations as
the first cause of action, but seeks to characterize defendants' conduct
as a breach of duty to safeguard their patient and the public. Since such
conclusory labels add nothing to the factual allegations of the complaint,
the first and fourth causes of action are legally indistinguishable.
|||As we explain in part 4 of this opinion, plaintiffs' first and fourth
causes of action, which seek to predicate liability upon the defendants'
failure to bring about Poddar's confinement, are barred by governmental
immunity. Plaintiffs' third cause of action succumbs to the decisions precluding
exemplary damages in a wrongful death action. (See part 6 of this opinion.)
We direct our attention, therefore, to the issue of whether plaintiffs'
second cause of action can be amended to state a basis for recovery.
|||2. Plaintiffs can state a cause of action against defendant therapists
for negligent failure to protect Tatiana.
|||The second cause of action can be amended to allege that Tatiana's death
proximately resulted from defendants' negligent failure to warn Tatiana
or others likely to apprise her of her danger. Plaintiffs contend that as
amended, such allegations of negligence and proximate causation, with resulting
damages, establish a cause of action. Defendants, however, contend that
in the circumstances of the present case they owed no duty of care to Tatiana
or her parents and that, in the absence of such
[17 Cal3d Page 434]
|||duty, they were free to act in careless disregard of Tatiana's life and
|||In analyzing this issue, we bear in mind that legal duties are not discoverable
facts of nature, but merely conclusory expressions that, in cases of a particular
type, liability should be imposed for damage done. As stated in Dillon v.
68 Cal. 2d 728
, 734 [
69 Cal. Rptr. 72
441 P.2d 912
, 29 A.L.R.3d 1316]: "The assertion that liability must . . . be denied
because defendant bears no 'duty' to plaintiff 'begs the essential question
-- whether the plaintiff's interests are entitled to legal protection against
the defendant's conduct. . . . [Duty] is not sacrosanct in itself, but only
an expression of the sum total of those considerations of policy which lead
the law to say that the particular plaintiff is entitled to protection.'
(Prosser, Law of Torts [3d ed. 1964] at pp. 332-333.)"
|||In the landmark case of Rowland v. Christian (1968)
69 Cal. 2d 108
70 Cal. Rptr. 97
443 P.2d 561
, 32 A.L.R.3d 496], Justice Peters recognized that liability should be imposed
"for injury occasioned to another by his want of ordinary care or skill"
as expressed in section
Code. Thus, Justice Peters, quoting from Heaven v. Pender (1883) 11 Q.B.D.
503, 509 stated: "'whenever one person is by circumstances placed in
such a position with regard to another . . . that if he did not use ordinary
care and skill in his own conduct . . . he would cause danger of injury
to the person or property of the other, a duty arises to use ordinary care
and skill to avoid such danger.'"
|||We depart from "this fundamental principle" only upon the "balancing
of a number of considerations"; major ones "are the foreseeability
of harm to the plaintiff, the degree of certainty that the plaintiff suffered
injury, the closeness of the connection between the defendant's conduct
and the injury suffered, the moral blame attached to the defendant's conduct,
the policy of preventing future harm, the extent of the burden to the defendant
and consequences to the community of imposing a duty to exercise care with
resulting liability for breach, and the availability, cost and prevalence
of insurance for the risk involved."*fn4
|||The most important of these considerations in establishing duty is foreseeability.
As a general principle, a "defendant owes a duty of
[17 Cal3d Page 435]
|||care to all persons who are foreseeably endangered by his conduct, with
respect to all risks which make the conduct unreasonably dangerous."
(Rodriguez v. Bethlehem Steel Corp. (1974)
12 Cal. 3d 382
, 399 [
115 Cal. Rptr. 765
525 P.2d 669]
; Dillon v. Legg, supra,
68 Cal. 2d 728
, 739; Weirum v. RKO General, Inc. (1975)
15 Cal. 3d 40
123 Cal. Rptr. 468
539 P.2d 36]
; see Civ. Code, § 1714.) As we shall explain, however, when the avoidance
of foreseeable harm requires a defendant to control the conduct of another
person, or to warn of such conduct, the common law has traditionally imposed
liability only if the defendant bears some special relationship to the dangerous
person or to the potential victim. Since the relationship between a therapist
and his patient satisfies this requirement, we need not here decide whether
foreseeability alone is sufficient to create a duty to exercise reasonable
care to protect a potential victim of another's conduct.
|||Although, as we have stated above, under the common law, as a general
rule, one person owed no duty to control the conduct of another*fn5
(Richards v. Stanley (1954)
43 Cal. 2d 60
, 65 [
271 P.2d 23]
; Wright v. Arcade School Dist. (1964)
230 Cal. App. 2d 272
, 277 [
40 Cal. Rptr. 812]
; Rest.2d Torts (1965) § 315), nor to warn those endangered by such conduct
(Rest.2d Torts, supra, § 314, com. c.; Prosser, Law of Torts (4th ed. 1971)
§ 56, p. 341), the courts have carved out an exception to this rule in cases
in which 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 of that conduct (see Rest.2d Torts, supra, §§ 315-320).
Applying this exception to the present case, we note that a relationship
of defendant therapists to either Tatiana or Poddar will suffice to establish
a duty of care; as explained in section 315 of the Restatement Second of
Torts, a duty of care may arise from either "(a) a special relation
. . . between the actor and the third person which imposes a duty upon the
actor to control the third person's conduct, or (b) a special relation .
. . between the actor and the other which gives to the other a right of
[17 Cal3d Page 436]
|||Although plaintiffs' pleadings assert no special relation between Tatiana
and defendant therapists, they establish as between Poddar and defendant
therapists the special relation that arises between a patient and his doctor
or psychotherapist.*fn6 Such a relationship
may support affirmative duties for the benefit of third persons. Thus, for
example, a hospital must exercise reasonable care to control the behavior
of a patient which may endanger other persons.*fn7
A doctor must also warn a patient if the patient's condition or medication
renders certain conduct, such as driving a car, dangerous to others.*fn8
|||Although the California decisions that recognize this duty have involved
cases in which the defendant stood in a special relationship both to the
victim and to the person whose conduct created the danger,*fn9
we do not think that the duty should logically be constricted to such situations.
Decisions of other jurisdictions hold that the single relationship of a
doctor to his patient is sufficient to support the duty to exercise reasonable
care to protect others against dangers emanating from the patient's illness.
The courts hold that a doctor is liable to persons
[17 Cal3d Page 437]
|||infected by his patient if he negligently fails to diagnose a contagious
disease (Hofmann v. Blackmon (Fla.App. 1970) 241 So.2d 752), or, having
diagnosed the illness, fails to warn members of the patient's family (Wojcik
v. Aluminum Co. of America (1959) 18 Misc.2d 740 [183 N.Y.S.2d 351, 357-358];
Davis v. Rodman (1921) 147 Ark. 385 [227 S.W. 612, 13 A.L.R. 1459]; Skillings
v. Allen (1919) 143 Minn. 323 [173 N.W. 663, 5 A.L.R. 922]; see also Jones
v. Stanko (1928) 118 Ohio St. 147 [6 Ohio L.Abs. 77, 160 N.E. 456]).
|||Since it involved a dangerous mental patient, the decision in Merchants
Nat. Bank & Trust Co. of Fargo v. United States (D.N.D. 1967) 272 F.Supp.
409 comes closer to the issue. The Veterans Administration arranged for
the patient to work on a local farm, but did not inform the farmer of the
man's background. The farmer consequently permitted the patient to come
and go freely during nonworking hours; the patient borrowed a car, drove
to his wife's residence and killed her. Notwithstanding the lack of any
"special relationship" between the Veterans Administration and
the wife, the court found the Veterans Administration liable for the wrongful
death of the wife.
|||In their summary of the relevant rulings Fleming and Maximov conclude
that the "case law should dispel any notion that to impose on the therapists
a duty to take precautions for the safety of persons threatened by a patient,
where due care so requires, is in any way opposed to contemporary ground
rules on the duty relationship. On the contrary, there now seems to be sufficient
authority to support the conclusion that by entering into a doctor-patient
relationship the therapist becomes sufficiently involved to assume some
responsibility for the safety, not only of the patient himself, but also
of any third person whom the doctor knows to be threatened by the patient."
(Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma
(1974) 62 Cal.L.Rev. 1025, 1030.)
|||Defendants contend, however, that imposition of a duty to exercise reasonable
care to protect third persons is unworkable because therapists cannot accurately
predict whether or not a patient will resort to violence. In support of
this argument amicus representing the American Psychiatric Association and
other professional societies cites numerous articles which indicate that
therapists, in the present state of the art, are unable reliably to predict
violent acts; their forecasts, amicus claims, tend consistently to overpredict
violence, and indeed are more often wrong
[17 Cal3d Page 438]
|||than right.*fn10 Since predictions
of violence are often erroneous, amicus concludes, the courts should not
render rulings that predicate the liability of therapists upon the validity
of such predictions.
|||The role of the psychiatrist, who is indeed a practitioner of medicine,
and that of the psychologist who performs an allied function, are like that
of the physician who must conform to the standards of the profession and
who must often make diagnoses and predictions based upon such evaluations.
Thus the judgment of the therapist in diagnosing emotional disorders and
in predicting whether a patient presents a serious danger of violence is
comparable to the judgment which doctors and professionals must regularly
render under accepted rules of responsibility.
|||We recognize the difficulty that a therapist encounters in attempting
to forecast whether a patient presents a serious danger of violence. Obviously,
we do not require that the therapist, in making that determination, render
a perfect performance; the therapist need only exercise "that reasonable
degree of skill, knowledge, and care ordinarily possessed and exercised
by members of [that professional specialty] under similar circumstances."
(Bardessono v. Michels (1970)
3 Cal. 3d 780
, 788 [
91 Cal. Rptr. 760
478 P.2d 480
, 45 A.L.R.3d 717]; Quintal v. Laurel Grove Hospital (1964)
62 Cal. 2d 154
, 159-160 [
41 Cal. Rptr. 577
397 P.2d 161]
; see 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 514 and cases
cited.) Within the broad range of reasonable practice and treatment in which
professional opinion and judgment may differ, the therapist is free to exercise
his or her own best judgment without liability; proof, aided by hindsight,
that he or she judged wrongly is insufficient to establish negligence.
|||In the instant case, however, the pleadings do not raise any question
as to failure of defendant therapists to predict that Poddar presented a
serious danger of violence. On the contrary, the present complaints allege
that defendant therapists did in fact predict that Poddar would kill, but
were negligent in failing to warn.
[17 Cal3d Page 439]
|||Amicus contends, however, that even when a therapist does in fact predict
that a patient poses a serious danger of violence to others, the therapist
should be absolved of any responsibility for failing to act to protect the
potential victim. In our view, however, once a therapist does in fact determine,
or under applicable professional standards reasonably should have determined,
that a patient poses a serious danger of violence to others, he bears a
duty to exercise reasonable care to protect the foreseeable victim of that
danger. While the discharge of this duty of due care will necessarily vary
with the facts of each case,*fn11 in
each instance the adequacy of the therapist's conduct must be measured against
the traditional negligence standard of the rendition of reasonable care
under the circumstances. (Accord Cobbs v. Grant (1972)
8 Cal. 3d 229
, 243 [
104 Cal. Rptr. 505
502 P.2d 1].
) As explained in Fleming and Maximov, The Patient or His Victim: The Therapist's
Dilemma (1974) 62 Cal.L.Rev. 1025, 1067: ". . . the ultimate question
of resolving the tension between the conflicting interests of patient and
potential victim is one of social policy, not professional expertise. .
. . In sum, the therapist owes a legal duty not only to his patient, but
also to his patient's would-be victim and is subject in both respects to
scrutiny by judge and jury."
|||Contrary to the assertion of amicus, this conclusion is not inconsistent
with our recent decision in People v. Burnick, supra,
14 Cal. 3d 306.
Taking note of the uncertain character of therapeutic prediction, we held
in Burnick that a person cannot be committed as a mentally disordered sex
offender unless found to be such by proof beyond a reasonable doubt. (
14 Cal. 3d at p. 328.
) The issue in the present context, however, is not whether the patient
should be incarcerated, but whether the therapist should take any steps
at all to protect the threatened victim; some of the alternatives open to
the therapist, such as warning the victim, will not result in the drastic
consequences of depriving the patient of his liberty. Weighing the uncertain
and conjectural character of the alleged damage done the patient by such
a warning against the peril to the victim's life, we conclude that professional
inaccuracy in predicting violence cannot negate the therapist's duty to
protect the threatened victim.
[17 Cal3d Page 440]
|||The risk that unnecessary warnings may be given is a reasonable price
to pay for the lives of possible victims that may be saved. We would hesitate
to hold that the therapist who is aware that his patient expects to attempt
to assassinate the President of the United States would not be obligated
to warn the authorities because the therapist cannot predict with accuracy
that his patient will commit the crime.
|||Defendants further argue that free and open communication is essential
to psychotherapy (see In re Lifschutz (1970)
2 Cal. 3d 415
, 431-434 [
85 Cal. Rptr. 829
467 P.2d 557
, 44 A.L.R.3d 1]); that "Unless a patient . . . is assured that . .
. information [revealed by him] can and will be held in utmost confidence,
he will be reluctant to make the full disclosure upon which diagnosis and
treatment . . . depends." (Sen. Com. on Judiciary, comment on Evid.
Code, § 1014.) The giving of a warning, defendants contend, constitutes
a breach of trust which entails the revelation of confidential communications.*fn12
|||We recognize the public interest in supporting effective treatment of
mental illness and in protecting the rights of patients to privacy (see
In re Lifschutz, supra,
2 Cal. 3d at p. 432
), and the consequent public importance of safeguarding the confidential
character of psychotherapeutic communication. Against this interest, however,
we must weigh the public interest in safety from violent assault. The Legislature
has undertaken the difficult task of balancing the countervailing concerns.
, it established a broad rule of privilege to protect confidential communications
between patient and psychotherapist.
[17 Cal3d Page 441]
, the Legislature created a specific and limited exception to the psychotherapist-patient
privilege: "There is no privilege . . . if the psychotherapist has
reasonable cause to believe that the patient is in such mental or emotional
condition as to be dangerous to himself or to the person or property of
another and that disclosure of the communication is necessary to prevent
the threatened danger."*fn13
|||We realize that the open and confidential character of psychotherapeutic
dialogue encourages patients to express threats of violence, few of which
are ever executed. Certainly a therapist should not be encouraged routinely
to reveal such threats; such disclosures could seriously disrupt the patient's
relationship with his therapist and with the persons threatened. To the
contrary, the therapist's obligations to his patient require that he not
disclose a confidence unless such disclosure is necessary to avert danger
to others, and even then that he do so discreetly, and in a fashion that
would preserve the privacy of his patient to the fullest extent compatible
with the prevention of the threatened danger. (See Fleming & Maximov,
The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev.
|||The revelation of a communication under the above circumstances is not
a breach of trust or a violation of professional ethics; as stated in the
Principles of Medical Ethics of the American Medical Association (1957),
section 9: "A physician may not reveal the confidence entrusted to
him in the course of medical attendance . . . unless he is required to do
so by law or unless it becomes necessary in order to protect the welfare
[17 Cal3d Page 442]
|||the individual or of the community."*fn15
(Italics added.) We conclude that the public policy favoring protection
of the confidential character of patient-psychotherapist communications
must yield to the extent to which disclosure is essential to avert danger
to others. The protective privilege ends where the public peril begins.
|||Our current crowded and computerized society compels the interdependence
of its members. In this risk-infested society we can hardly tolerate the
further exposure to danger that would result from a concealed knowledge
of the therapist that his patient was lethal. If the exercise of reasonable
care to protect the threatened victim requires the therapist to warn the
endangered party or those who can reasonably be expected to notify him,
we see no sufficient societal interest that would protect and justify concealment.
The containment of such risks lies in the public interest. For the foregoing
reasons, we find that plaintiffs' complaints can be amended to state a cause
of action against defendants Moore, Powelson, Gold, and Yandell and against
the Regents as their employer, for breach of a duty to exercise reasonable
care to protect Tatiana.*fn16
|||Finally, we reject the contention of the dissent that the provisions of
the Lanterman-Petris-Short Act which govern the release of confidential
information (Welf. & Inst. Code, §§ 5328-5328.9) prevented defendant
therapists from warning Tatiana. The dissent's contention rests on the assertion
that Dr. Moore's letter to the campus police constituted an "application
in writing" within the meaning of Welfare and Institutions Code section
5150, and thus initiates proceedings under the Lanterman-Petris-Short Act.
A closer look at the terms of section 5150, however, will demonstrate that
it is inapplicable to the present case.
|||Section 5150 refers to a written application only by a professional person
who is "a member of the attending staff . . . of an evaluation
[17 Cal3d Page 443]
|||facility designated by the county," or who is himself "designated
by the county" as one authorized to take a person into custody and
place him in a facility designated by the county and approved by the State
Department of Mental Hygiene. The complaint fails specifically to allege
that Dr. Moore was so empowered. Dr. Moore and the Regents cannot rely upon
any inference to the contrary that might be drawn from plaintiff's allegation
that Dr. Moore intended to "assign" a "detention" on
Poddar; both Dr. Moore and the Regents have expressly conceded that neither
Cowell Memorial Hospital nor any member of its staff has ever been designated
by the County of Alameda to institute involuntary commitment proceedings
pursuant to section 5150.
|||Furthermore, the provisions of the Lanterman-Petris-Short Act defining
a therapist's duty to withhold confidential information are expressly limited
to "information and records obtained in the course of providing services
under Division 5 (commencing with section 5000), Division 6 (commencing
with section 6000), or Division 7 (commencing with section 7000)" of
the Welfare and Institutions Code (Welf. & Inst. Code, § 5328). (Italics
added.) Divisions 5, 6 and 7 describe a variety of programs for treatment
of the mentally ill or retarded.*fn17
The pleadings at issue on this appeal, however, state no facts showing that
the psychotherapy provided to Poddar by the Cowell Memorial Hospital falls
under any of these programs. We therefore conclude that the Lanterman-Petris-Short
Act does not govern the release of information acquired by Moore during
the course of rendition of those services.
|||Neither can we adopt the dissent's suggestion that we import wholesale
the detailed provisions of the Lanterman-Petris-Short Act regulating the
disclosure of confidential information and apply them to disclosure of information
not governed by the act. Since the Legislature did not extend the act to
control all disclosures of confidential matter by a therapist, we must infer
that the Legislature did not relieve the courts of their obligation to define
by reference to the principles of the common law the obligation of the therapist
in those situations not governed by the act.
[17 Cal3d Page 444]
|||Turning now to the police defendants, we conclude that they do not have
any such special relationship to either Tatiana or to Poddar sufficient
to impose upon such defendants a duty to warn respecting Poddar's violent
intentions. (See Hartzler v. City of San Jose (1975)
46 Cal. App. 3d 6
, 9-10 [
120 Cal. Rptr. 5]
; Antique Arts Corp. v. City of Torrance (1974)
39 Cal. App. 3d 588
, 593 [
114 Cal. Rptr. 332].
) Plaintiffs suggest no theory,*fn18
and plead no facts that give rise to any duty to warn on the part of the
police defendants absent such a special relationship. They have thus failed
to demonstrate that the trial court erred in denying leave to amend as to
the police defendants. (See Cooper v. Leslie Salt Co. (1969)
70 Cal. 2d 627
, 636 [
75 Cal. Rptr. 766
451 P.2d 406]
; Filice v. Boccardo (1962)
210 Cal. App. 2d 843
, 847 [
26 Cal. Rptr. 789].
|||3. Defendant therapists are not immune from liability for failure to warn.
|||We address the issue of whether defendant therapists are protected by
governmental immunity for having failed to warn Tatiana or those who reasonably
could have been expected to notify her of her peril. We postulate our analysis
on section 820.2 of the Government Code.*fn19
That provision declares, with exceptions not applicable here, that "a
public employee is not liable for an injury resulting from his act or omission
where the act or omission was the result of the exercise of the discretion
vested in him, whether or not such discretion [was] abused."*fn20
[17 Cal3d Page 445]
|||Noting that virtually every public act admits of some element of discretion,
we drew the line in Johnson v. State of California (1968)
69 Cal. 2d 782
73 Cal. Rptr. 240
447 P.2d 352]
, between discretionary policy decisions which enjoy statutory immunity
and ministerial administrative acts which do not. We concluded that section
820.2 affords immunity only for " basic policy decisions." (Italics
added.) (See also Elton v. County of Orange (1970)
3 Cal. App. 3d 1053
, 1057-1058 [
84 Cal. Rptr. 27]
; 4 Cal. Law Revision Com. Rep. (1963) p. 810; Van Alstyne, Supplement to
Cal. Government Tort Liability (Cont. Ed. Bar 1969) § 5.54, pp. 16-17; Comment,
California Tort Claims Act: Discretionary Immunity (1966) 39 So.Cal.L.Rev.
470, 471; cf. James, Tort Liability of Governmental Units and Their Officers
(1955) 22 U.Chi.L.Rev. 610, 637-638, 640, 642, 651.)
|||We also observed that if courts did not respect this statutory immunity,
they would find themselves "in the unseemly position of determining
the propriety of decisions expressly entrusted to a coordinate branch of
government." (Johnson v. State of California, supra, at p. 793.) It
therefore is necessary, we concluded, to "isolate those areas of quasilegislative
policy-making which are sufficiently sensitive to justify a blanket rule
that courts will not entertain a tort action alleging that careless conduct
contributed to the governmental decision." (Johnson v. State of California,
supra, at p. 794.) After careful analysis we rejected, in Johnson, other
rationales commonly advanced to support governmental immunity*fn21
and concluded that the immunity's scope should be no greater than is required
to give legislative and executive policymakers sufficient breathing space
in which to perform their vital policymaking functions.
|||Relying on Johnson, we conclude that defendant therapists in the present
case are not immune from liability for their failure to warn of Tatiana's
peril. Johnson held that a parole officer's determination whether to warn
an adult couple that their prospective foster child had a background of
violence "[presented] no . . . reasons for immunity" (Johnson
v. State of California, supra, at p. 795), was "at the lowest,
[17 Cal3d Page 446]
|||ministerial rung of official action" (id., at p. 796), and indeed
constituted "a classic case for the imposition of tort liability."
(Id., p. 797; cf. Morgan v. County of Yuba, supra,
230 Cal. App. 2d 938
, 942-943.) Although defendants in Johnson argued that the decision whether
to inform the foster parents of the child's background required the exercise
of considerable judgmental skills, we concluded that the state was not immune
from liability for the parole officer's failure to warn because such a decision
did not rise to the level of a "basic policy decision."
|||We also noted in Johnson that federal courts have consistently categorized
failures to warn of latent dangers as falling outside the scope of discretionary
omissions immunized by the Federal Tort Claims Act.*fn22
(See United Air Lines, Inc. v. Wiener (9th Cir. 1964) 335 F.2d 379, 397-398,
cert. den. sub nom. United Air Lines, Inc. v. United States, 379 U.S. 951
[13 L.Ed. 2d 549, 85 S.Ct. 452] (decision to conduct military training flights
was discretionary but failure to warn commercial airline was not); United
States v. State of Washington (9th Cir. 1965) 351 F.2d 913, 916 (decision
where to place transmission lines spanning canyon was assumed to be discretionary
but failure to warn pilot was not); United States v. White (9th Cir. 1954)
211 F.2d 79, 82 (decision not to "dedud" army firing range assumed
to be discretionary but failure to warn person about to go onto range of
unsafe condition was not); Bulloch v. United States (D.Utah 1955) 133 F.Supp.
885, 888 (decision how and when to conduct nuclear test deemed discretionary
but failure to afford proper notice was not); Hernandez v. United States
(D.Hawaii 1953) 112 F.Supp. 369, 371 (decision to erect road block characterized
as discretionary but failure to warn of resultant hazard was not).
|||We conclude, therefore, that the therapist defendants' failure to warn
Tatiana or those who reasonably could have been expected to notify her of
her peril does not fall within the absolute protection afforded by section
820.2 of the Government Code. We emphasize that our conclusion
[17 Cal3d Page 447]
|||does not raise the specter of therapists employed by the government indiscriminately
being held liable for damage despite their exercise of sound professional
judgment. We require of publicly employed therapists only that quantum of
care which the common law requires of private therapists. The imposition
of liability in those rare cases in which a public employee falls short
of this standard does not contravene the language or purpose of Government
Code section 820.2.
|||4. Defendant therapists are immune from liability for failing to confine
|||We sustain defendant therapists' contention that Government Code section
856 insulates them from liability under plaintiffs' first and fourth causes
of action for failing to confine Poddar. Section 856 affords public entities
and their employees absolute protection from liability for "any injury
resulting from determining in accordance with any applicable enactment .
. . whether to confine a person for mental illness." Since this section
refers to a determination to confine "in accordance with any applicable
enactment," plaintiffs suggest that the immunity is limited to persons
designated under Welfare and Institutions Code section 5150 as authorized
finally to adjudicate a patient's confinement. Defendant therapists, plaintiffs
point out, are not among the persons designated under section 5150.
|||The language and legislative history of section 856, however, suggest
a far broader immunity. In 1963, when section 856 was enacted, the Legislature
had not established the statutory structure of the Lanterman-Petris-Short
Act. Former Welfare and Institutions Code section 5050.3 (renumbered as
Welf. & Inst. Code, § 5880; repealed July 1, 1969) which resembled present
section 5150, authorized emergency detention at the behest only of peace
officers, health officers, county physicians, or assistant county physicians;
former section 5047 (renumbered as Welf. & Inst. Code, § 5551; repealed
July 1, 1969), however, authorized a petition seeking commitment by any
person, including the "physician attending the patient." The Legislature
did not refer in section 856 only to those persons authorized to institute
emergency proceedings under section 5050.3; it broadly extended immunity
to all employees who acted in accord with "any applicable enactment,"
thus granting immunity not only to persons who are empowered to confine,
but also to those authorized to request or recommend confinement.
[17 Cal3d Page 448]
|||The Lanterman-Petris-Short Act, in its extensive revision of the procedures
for commitment of the mentally ill, eliminated any specific statutory reference
to petitions by treating physicians, but it did not limit the authority
of a therapist in government employ to request, recommend or initiate actions
which may lead to commitment of his patient under the act. We believe that
the language of section 856, which refers to any action in the course of
employment and in accordance with any applicable enactment, protects the
therapist who must undertake this delicate and difficult task. (See Fleming
& Maximov, The Patient or His Victim: The Therapist's Dilemma (1974)
62 Cal.L.Rev. 1025, 1064.) Thus the scope of the immunity extends not only
to the final determination to confine or not to confine the person for mental
illness, but to all determinations involved in the process of commitment.
(Cf. Hernandez v. State of California (1970)
11 Cal. App. 3d 895
, 899-900 [
90 Cal. Rptr. 205].
|||Turning first to Dr. Powelson's status with respect to section 856, we
observe that the actions attributed to him by plaintiffs' complaints fall
squarely within the protections furnished by that provision. Plaintiffs
allege Powelson ordered that no actions leading to Poddar's detention be
taken. This conduct reflected Powelson's determination not to seek Poddar's
confinement and thus falls within the statutory immunity.
|||Section 856 also insulates Dr. Moore for his conduct respecting confinement,
although the analysis in his case is a bit more subtle. Clearly, Moore's
decision that Poddar be confined was not a proximate cause of Tatiana's
death, for indeed if Moore's efforts to bring about Poddar's confinement
had been successful, Tatiana might still be alive today. Rather, any confinement
claim against Moore must rest upon Moore's failure to overcome Powelson's
decision and actions opposing confinement.
|||Such a claim, based as it necessarily would be, upon a subordinate's failure
to prevail over his superior, obviously would derive from a rather onerous
duty. Whether to impose such a duty we need not decide, however, since we
can confine our analysis to the question whether Moore's failure to overcome
Powelson's decision realistically falls within the protection afforded by
section 856. Based upon the allegations before us, we conclude that Moore's
conduct is protected.
|||Plaintiffs' complaints imply that Moore acquiesced in Powelson's countermand
of Moore's confinement recommendation. Such acquiescence
[17 Cal3d Page 449]
|||is functionally equivalent to determining not to seek Poddar's confinement
and thus merits protection under section 856. At this stage we are unaware,
of course, precisely how Moore responded to Powelson's actions; he may have
debated the confinement issue with Powelson, for example, or taken no initiative
whatsoever, perhaps because he respected Powelson's judgment, feared for
his future at the hospital, or simply recognized that the proverbial handwriting
was on the wall. None of these possibilities constitutes, however, the type
of careless or wrongful behavior subsequent to a decision respecting confinement
which is stripped of protection by the exception in section 856.*fn23
Rather, each is in the nature of a decision not to continue to press for
Poddar's confinement. No language in plaintiffs' original or amended complaints
suggests that Moore determined to fight Powelson, but failed successfully
to do so, due to negligent or otherwise wrongful acts or omissions. Under
the circumstances, we conclude that plaintiffs' second amended complaints
allege facts which trigger immunity for Dr. Moore under section 856.*fn24
|||5. Defendant police officers are immune from liability for failing to
confine Poddar in their custody.
|||Confronting, finally, the question whether the defendant police officers
are immune from liability for releasing Poddar after his brief confinement,
we conclude that they are. The source of their immunity is section 5154
of the Welfare and Institutions Code, which declares that: "[the] professional
person in charge of the facility providing 72-hour treatment and evaluation,
his designee, and the peace officer responsible for the detainment of the
person shall not be held civilly or criminally liable for any action by
a person released at or before the end of 72 hours . . . ." (Italics
|||Although defendant police officers technically were not "peace officers"
as contemplated by the Welfare and Institutions Code,*fn25
[17 Cal3d Page 450]
|||plaintiffs' assertion that the officers incurred liability by failing
to continue Poddar's confinement clearly contemplates that the officers
were "responsible for the detainment of [Poddar]." We could not
impose a duty upon the officers to keep Poddar confined yet deny them the
protection furnished by a statute immunizing those "responsible for
. . . [confinement]." Because plaintiffs would have us treat defendant
officers as persons who were capable of performing the functions of the
"peace officers" contemplated by the Welfare and Institutions
Code, we must accord defendant officers the protections which that code
prescribed for such "peace officers."
|||6. Plaintiffs' complaints state no cause of action for exemplary damages.
|||Plaintiff's third cause of action seeks punitive damages against defendant
Powelson. The California statutes and decisions, however, have been interpreted
to bar the recovery of punitive damages in a wrongful death action. (See
Pease v. Beech Aircraft Corp. (1974)
38 Cal. App. 3d 450
, 460-462 [
113 Cal. Rptr. 416]
and authorities there cited.)
|||For the reasons stated, we conclude that plaintiffs can amend their complaints
to state a cause of action against defendant therapists by asserting that
the therapists in fact determined that Poddar presented a serious danger
of violence to Tatiana, or pursuant to the standards of their profession
should have so determined, but nevertheless failed to exercise reasonable
care to protect her from that danger. To the extent, however, that plaintiffs
base their claim that defendant therapists breached that duty because they
failed to procure Poddar's confinement, the therapists find immunity in
Government Code section 856. Further, as to the police defendants we conclude
that plaintiffs have failed to show that the trial court erred in sustaining
their demurrer without leave to amend.
|||The judgment of the superior court in favor of defendants Atkinson, Beall,
Brownrigg, Hallernan, and Teel is affirmed. The judgment of the superior
court in favor of defendants Gold, Moore, Powelson, Yandell, and the Regents
of the University of California is reversed, and the cause remanded for
further proceedings consistent with the views expressed herein.
|||The judgment of the superior court in favor of defendants Atkinson, Beall,
Brownrigg, Hallernan, and Teel is affirmed. The judgment of the superior
court in favor of defendants Gold, Moore, Powelson, Yandell, and the Regents
of the University of California is reversed, and the cause remanded for
further proceedings consistent with the views expressed herein.
[17 Cal3d Page 451]
|||Mosk, J., Concurring and Dissenting I concur in the result in this instance
only because the complaints allege that defendant therapists did in fact
predict that Poddar would kill and were therefore negligent in failing to
warn of that danger. Thus the issue here is very narrow: we are not concerned
with whether the therapists, pursuant to the standards of their profession,
"should have" predicted potential violence; they allegedly did
so in actuality. Under these limited circumstances I agree that a cause
of action can be stated.
|||Whether plaintiffs can ultimately prevail is problematical at best. As
the complaints admit, the therapists did notify the police that Poddar was
planning to kill a girl identifiable as Tatiana. While I doubt that more
should be required, this issue may be raised in defense and its determination
is a question of fact.
|||I cannot concur, however, in the majority's rule that a therapist may
be held liable for failing to predict his patient's tendency to violence
if other practitioners, pursuant to the "standards of the profession,"
would have done so. The question is, what standards? Defendants and a responsible
amicus curiae, supported by an impressive body of literature discussed at
length in our recent opinion in People v. Burnick (1975)
14 Cal. 3d 306
121 Cal. Rptr. 488
535 P.2d 352]
, demonstrate that psychiatric predictions of violence are inherently unreliable.
|||In Burnick, at pages 325-326, we observed: "In the light of recent
studies it is no longer heresy to question the reliability of psychiatric
predictions. Psychiatrists themselves would be the first to admit that however
desirable an infallible crystal ball might be, it is not among the tools
of their profession. It must be conceded that psychiatrists still experience
considerable difficulty in confidently and accurately diagnosing mental
illness. Yet those difficulties are multiplied manyfold when psychiatrists
venture from diagnosis to prognosis and undertake to predict the consequences
of such illness: '" A diagnosis of mental illness tells us nothing
about whether the person so diagnosed is or is not dangerous. Some mental
patients are dangerous, some are not. Perhaps the psychiatrist is an expert
at deciding whether a person is mentally ill, but is he an expert at predicting
which of the persons so diagnosed are dangerous? Sane people, too, are dangerous,
and it may legitimately be inquired whether there is anything in the education,
training or experience of psychiatrists which renders them particularly
adept at predicting dangerous behavior. Predictions of dangerous behavior,
[17 Cal3d Page 452]
|||matter who makes them, are incredibly inaccurate, and there is a growing
consensus that psychiatrists are not uniquely qualified to predict dangerous
behavior and are, in fact, less accurate in their predictions than other
professionals."' (Murel v. Baltimore City Criminal Court (1972) . .
. 407 U.S. 355, 364-365, fn. 2 [32 L.Ed.2d 791, 796-797, 92 S.Ct. 2091]
(Douglas, J., dissenting from dismissal of certiorari).)" (Fns. omitted.)
(See also authorities cited at p. 327 & fn. 18 of 14 Cal. 3d.)
|||The majority confidently claim their opinion is not offensive to Burnick,
on the stated ground that Burnick involved proceedings to commit an alleged
mentally disordered sex offender and this case does not. I am not so sanguine
about the distinction. Obviously the two cases are not factually identical,
but the similarity in issues is striking: in Burnick we were likewise called
upon to appraise the ability of psychiatrists to predict dangerousness,
and while we declined to bar all such testimony (id., at pp. 327-328) we
found it so inherently untrustworthy that we would permit confinement even
in a so-called civil proceeding only upon proof beyond a reasonable doubt.
|||I would restructure the rule designed by the majority to eliminate all
reference to conformity to standards of the profession in predicting violence.
If a psychiatrist does in fact predict violence, then a duty to warn arises.
The majority's expansion of that rule will take us from the world of reality
into the wonderland of clairvoyance.
|||Clark, J. Until today's majority opinion, both legal and medical authorities
have agreed that confidentiality is essential to effectively treat the mentally
ill, and that imposing a duty on doctors to disclose patient threats to
potential victims would greatly impair treatment. Further, recognizing that
effective treatment and society's safety are necessarily intertwined, the
Legislature has already decided effective and confidential treatment is
preferred over imposition of a duty to warn.
|||The issue whether effective treatment for the mentally ill should be sacrificed
to a system of warnings is, in my opinion, properly one for the Legislature,
and we are bound by its judgment. Moreover, even in the absence of clear
legislative direction, we must reach the same conclusion because imposing
the majority's new duty is certain to result in a net increase in violence.
|||The majority rejects the balance achieved by the Legislature's Lanterman-Petris-Short
Act. (Welf. & Inst. Code, § 5000 et seq.,
[17 Cal3d Page 453]
|||hereafter the act.)*fn1 In addition,
the majority fails to recognize that, even absent the act, overwhelming
policy considerations mandate against sacrificing fundamental patient interests
without gaining a corresponding increase in public benefit.
|||Although the parties have touched only briefly on the nondisclosure provisions
of the act, amici have pointed out their importance. The instant case arising
after ruling on demurrer, the parties must confront the act's provisions
in the trial court. In these circumstances the parties' failure to fully
meet the provisions of the act would not justify this court's refusal to
discuss and apply the law.
|||Having a grave impact on future treatment of the mentally ill in our state,
the majority opinion clearly transcends the interests of the immediate parties
and must discuss all applicable law. It abdicates judicial responsibility
to refuse to recognize the clear legislative policy reflected in the act.
|||Effective 1 July 1969, the Legislature created a comprehensive statutory
resolution of the rights and duties of both the mentally infirm and those
charged with their care and treatment. The act's purposes include ending
inappropriate commitment, providing prompt care, protecting public safety,
and safeguarding personal rights. (§ 5001.) The act applies to both voluntary
and involuntary commitment and to both public and private institutions;
it details legal procedure for commitment; it enumerates the legal and civil
rights of persons committed; and it spells out the duties, liabilities and
rights of the psychotherapist. Thus the act clearly evinces the Legislature's
weighing of the countervailing concerns presently before us -- when a patient
has threatened a third person during psychiatric treatment.
|||Reflecting legislative recognition that disclosing confidences impairs
effective treatment of the mentally ill, and thus is contrary to the best
interests of society, the act establishes the therapist's duty to not disclose.
Section 5328 provides in part that "[all] information and records obtained
in the course of providing services . . . to either voluntary or involuntary
recipients of services shall be confidential." (Italics added.) Further,
a patient may enjoin disclosure in violation of statute and may
[17 Cal3d Page 454]
|||recover the greater of $500 or three times the amount of actual damage
for unlawful disclosure. (§ 5330.)
|||However, recognizing that some private and public interests must override
the patient's, the Legislature established several limited exceptions to
confidentiality.*fn2 The limited nature
of these exceptions and the
[17 Cal3d Page 455]
|||legislative concern that disclosure might impair treatment, thereby harming
both patient and society, are shown by section 5328.1. The section provides
that a therapist may disclose "to a member of the family of a patient
the information that the patient is presently a patient in the facility
or that the patient is seriously physically ill . . . if the professional
person in charge of the facility determines that the release of such information
is in the best interest of the patient." Thus, disclosing even the
fact of treatment is severely limited.
|||As originally enacted the act contained no provision allowing the therapist
to warn anyone of a patient's threat. In 1970, however, the act was amended
to permit disclosure in two limited circumstances. Section 5328 was amended,
in subdivision (g), to allow disclosure "[ to ] governmental law enforcement
agencies as needed for the protection of federal and state elective constitutional
officers and their families." (Italics added.) In addition, section
5328.3 was added to provide that when "necessary for the protection
of the patient or others due to the patient's disappearance from, without
prior notice to, a designated facility and his whereabouts is unknown, notice
of such disappearance may be made to relatives and governmental law enforcement
agencies designated by the physician in charge of the patient or the professional
person in charge of the facility or his designee." (Italics added.)
|||Obviously neither exception to the confidentiality requirement is applicable
to the instant case.
|||Not only has the Legislature specifically dealt with disclosure and warning,
but it also has dealt with therapist and police officer liability for acts
of the patient. The Legislature has provided that the therapist and the
officer shall not be liable for prematurely releasing the patient. (§§ 5151,
5154, 5173, 5278, 5305, 5306.)
[17 Cal3d Page 456]
|||Ignoring the act's detailed provisions, the majority has chosen to focus
on the "dangerous patient exception" to the psychotherapist-patient
as indicating that "the Legislature has undertaken the difficult task
of balancing the countervailing concerns." (Ante, p. 440.) However,
this conclusion is erroneous. The majority fails to appreciate that when
disclosure is permitted in an evidentiary hearing, a fourth interest comes
into play -- the court's concern in judicial supervision. Because they are
necessary to the administration of justice, disclosures to the courts are
excepted from the nondisclosure requirement by section 5328, subdivision
(f). However, this case does not involve a court disclosure. Subdivision
(f) and the
Code sections relied on by the majority are clearly inapposite.
|||The provisions of the act are applicable here. Section 5328 (see fn. 2,
ante) provides, " All information and records obtained in the course
of providing services under division 5 . . . shall be confidential."
(Italics added.) Dr. Moore's letter describing Poddar's mental condition
for purposes of obtaining 72-hour commitment was undisputedly a transmittal
of information designed to invoke application of division 5. As such it
constituted information obtained in providing services under division 5.
This is true regardless of whether Dr. Moore has been designated a professional
person by the County of Alameda. Although section 5150 provides that commitment
for 72 hours' evaluation shall be based on a statement by a peace officer
or person designated by the county, section 5328 prohibits disclosure of
all information, not just disclosure of the committing statement or disclosure
by persons designated by the county. In addition, section 5330 gives the
patient a cause of action for disclosure of confidential information by
"an individual" rather than the persons enumerated in section
|||Moreover, it appears from the allegations of the complaint that Dr. Moore
is in fact a person designated by the county under section 5150. The complaint
alleges that "On or about August 20, 1969, defendant Dr. Moore notified
Officers Atkinson and Teel, he would give the campus police a letter of
diagnosis on Prosenjit Poddar, so the campus police could pick up Poddar
and take him to Herrick Hospital in Berkeley where Dr. Moore would assign
a 72-hour Emergency Psychiatric Detention on Prosenjit Poddar." Since
there is no allegation that Dr. Moore was not authorized to sign the document,
it must be concluded that under the allegations of the complaint he was
authorized and thus a professional person designated by the county.
[17 Cal3d Page 457]
|||Whether we rely on the facts as stated in the complaint that Dr. Moore
is a designated person under section 5150 or on the strict prohibitions
of section 5328 prohibiting disclosure of " all information,"
the imposition of a duty to warn by the majority flies directly in the face
of the Lanterman-Petris-Short Act.
|||Under the act, there can be no liability for Poddar's premature release.
It is likewise clear there exists no duty to warn. Under section 5328, the
therapists were under a duty to not disclose, and no exception to that duty
is applicable here. Establishing a duty to warn on the basis of general
tort principles imposes a Draconian dilemma on therapists -- either violate
the act thereby incurring the attendant statutory penalties, or ignore the
majority's duty to warn thereby incurring potential civil liability. I am
unable to assent to such.
|||If the majority feels that it must impose such a dilemma, then it has
an obligation to specifically enumerate the circumstances under which the
Lanterman-Petris-Short Act applies as opposed to the circumstances when
"general tort principles" will govern. The majority's failure
to perform this obligation -- leaving to the therapist the subtle questions
as to when each opposing rule applies -- is manifestly unfair.
|||Duty to Disclose in the Absence of Controlling Statutory Provision
|||Even assuming the act's provisions are applicable only to conduct occurring
after commitment, and not to prior conduct, the act remains applicable to
the most dangerous patients -- those committed. The Legislature having determined
that the balance of several interests requires nondisclosure in the graver
public danger commitment, it would be anomalous for this court to reweigh
the interests, requiring disclosure for those less dangerous. Rather, we
should follow the legislative direction by refusing to require disclosure
of confidential information received by the therapist either before or in
the absence of commitment. The Legislature obviously is more capable than
is this court to investigate, debate and weigh potential patient harm through
disclosure against the risk of public harm by nondisclosure. We should defer
to its judgment.
|||Common Law Analysis
|||Entirely apart from the statutory provisions, the same result must be
reached upon considering both general tort principles and the public
[17 Cal3d Page 458]
|||policies favoring effective treatment, reduction of violence, and justified
|||Generally, a person owes no duty to control the conduct of another. (Richards
v. Stanley (1954)
43 Cal. 2d 60
, 65 [
271 P.2d 23]
; Wright v. Arcade School Dist. (1964)
230 Cal. App. 2d 272
, 277 [
40 Cal. Rptr. 812]
; Rest.2d Torts (1965) § 315.) Exceptions are recognized only in limited
situations where (1) a special relationship exists between the defendant
and injured party, or (2) a special relationship exists between defendant
and the active wrongdoer, imposing a duty on defendant to control the wrongdoer's
conduct. The majority does not contend the first exception is appropriate
to this case.
|||Policy generally determines duty. (Dillon v. Legg (1968)
68 Cal. 2d 728
, 734 [
69 Cal. Rptr. 72
441 P.2d 912
, 29 A.L.R.3d 1316].) Principal policy considerations include foreseeability
of harm, certainty of the plaintiff's injury, proximity of the defendant's
conduct to the plaintiff's injury, moral blame attributable to defendant's
conduct, prevention of future harm, burden on the defendant, and consequences
to the community. (Rowland v. Christian (1968)
69 Cal. 2d 108
, 113 [
70 Cal. Rptr. 97
443 P.2d 561
, 32 A.L.R.3d 496].)
|||Overwhelming policy considerations weigh against imposing a duty on psychotherapists
to warn a potential victim against harm. While offering virtually no benefit
to society, such a duty will frustrate psychiatric treatment, invade fundamental
patient rights and increase violence.
|||The importance of psychiatric treatment and its need for confidentiality
have been recognized by this court. (In re Lifschutz (1970)
2 Cal. 3d 415
, 421-422 [
85 Cal. Rptr. 829
467 P.2d 557
, 44 A.L.R.3d 1].) "It is clearly recognized that the very practice
of psychiatry vitally depends upon the reputation in the community that
the psychiatrist will not tell." (Slovenko, Psychiatry and a Second
Look at the Medical Privilege (1960) 6 Wayne L.Rev. 175, 188.)
|||Assurance of confidentiality is important for three reasons.
|||Deterrence From Treatment
|||First, without substantial assurance of confidentiality, those requiring
treatment will be deterred from seeking assistance. (See Sen. Judiciary
Com. comment accompanying § 1014 of Evid. Code; Slovenko, supra, 6
[17 Cal3d Page 459]
|||Wayne L.Rev. 175, 187-188; Goldstein & Katz, Psychiatrist-Patient
Privilege: The GAP Proposal and the Connecticut Statute (1962) 36 Conn.Bar
J. 175, 178.) It remains an unfortunate fact in our society that people
seeking psychiatric guidance tend to become stigmatized. Apprehension of
such stigma -- apparently increased by the propensity of people considering
treatment to see themselves in the worst possible light -- creates a well-recognized
reluctance to seek aid. (Fisher, The Psychotherapeutic Professions and the
Law of Privileged Communications (1964) 10 Wayne L.Rev. 609, 617; Slovenko,
supra, 6 Wayne L.Rev. 175, 188; see also Rappeport, Psychiatrist-Patient
Privilege (1963) 23 Md.L.J. 39, 46-47.) This reluctance is alleviated by
the psychiatrist's assurance of confidentiality.
|||Second, the guarantee of confidentiality is essential in eliciting the
full disclosure necessary for effective treatment. (In re Lifschutz, supra,
2 Cal. 3d 415
, 431; Taylor v. United States (D.C.Cir. 1955) 222 F.2d 398, 401 [95 App.D.C.
373]; Goldstein & Katz, supra, 36 Conn.Bar J. 175, 178; Heller, Some
Comments to Lawyers on the Practice of Psychiatry (1957) 30 Temp.L.Q. 401;
Guttmacher & Weihofen, Privileged Communications Between Psychiatrist
and Patient (1952) 28 Ind.L.J.32, 34.)*fn3
The psychiatric patient approaches treatment with conscious and unconscious
inhibitions against revealing his innermost thoughts. "Every person,
however well-motivated, has to overcome resistances to therapeutic exploration.
These resistances seek support from every possible source and the possibility
of disclosure would easily be employed in the service of resistance."
(Goldstein & Katz, supra, 36 Conn.Bar J. 175, 179; see also, 118 Am.J.Psych.
734, 735.) Until a patient can trust his psychiatrist not to violate their
confidential relationship, "the unconscious psychological control mechanism
of repression will prevent the recall of past experiences." (Butler,
Psychotherapy and Griswold: Is Confidentiality a Privilege or a Right ?
(1971) 3 Conn.L.Rev. 599, 604.)
|||Third, even if the patient fully discloses his thoughts, assurance that
the confidential relationship will not be breached is necessary to
[17 Cal3d Page 460]
|||maintain his trust in his psychiatrist -- the very means by which treatment
is effected. "[The] essence of much psychotherapy is the contribution
of trust in the external world and ultimately in the self, modelled upon
the trusting relationship established during therapy." (Dawidoff, The
Malpractice of Psychiatrists, 1966 Duke L.J. 696, 704.) Patients will be
helped only if they can form a trusting relationship with the psychiatrist.
(Id., at p. 704, fn. 34; Burham, Separation Anxiety (1965) 13 Arch.Gen.Psych.
346, 356; Heller, supra, 30 Temp.L.Q. 401, 406.) All authorities appear
to agree that if the trust relationship cannot be developed because of collusive
communication between the psychiatrist and others, treatment will be frustrated.
(See, e.g., Slovenko (1973) Psychiatry and Law, p. 61; Cross, Privileged
Communications Between Participants in Group Psychotherapy (1970) Law &
Soc. Order, 191, 199; Hollender, The Psychiatrist and the Release of Patient
Information (1960) 116 Am.J.Psych. 828, 829.)
|||Given the importance of confidentiality to the practice of psychiatry,
it becomes clear the duty to warn imposed by the majority will cripple the
use and effectiveness of psychiatry. Many people, potentially violent --
yet susceptible to treatment -- will be deterred from seeking it; those
seeking it will be inhibited from making revelations necessary to effective
treatment; and, forcing the psychiatrist to violate the patient's trust
will destroy the interpersonal relationship by which treatment is effected.
|||Violence and Civil Commitment
|||By imposing a duty to warn, the majority contributes to the danger to
society of violence by the mentally ill and greatly increases the risk of
civil commitment -- the total deprivation of liberty -- of those who should
not be confined.*fn4 The impairment
of treatment and risk of improper commitment resulting from the new duty
to warn will not be limited to a few patients but will extend to a large
number of the mentally ill.
[17 Cal3d Page 461]
|||Although under existing psychiatric procedures only a relatively few receiving
treatment will ever present a risk of violence, the number making threats
is huge, and it is the latter group -- not just the former -- whose treatment
will be impaired and whose risk of commitment will be increased.
|||Both the legal and psychiatric communities recognize that the process
of determining potential violence in a patient is far from exact, being
fraught with complexity and uncertainty. (E.g., People v. Burnick (1975)
14 Cal. 3d 306
, 326 [
121 Cal. Rptr. 488
535 P.2d 352]
, quoting from Murel v. Baltimore City Criminal Court (1972) 407 U.S. 355,
364-365, fn. 2 [32 L.Ed.2d 791, 796-797, 92 S.Ct. 2091] (Douglas, J., dissenting
from dismissal of certiorari); Ennis & Litwack, Psychiatry and the Presumption
of Expertise: Flipping Coins in the Courtroom, 62 Cal.L.Rev. 693, 711-716;
Rector, Who Are the Dangerous ? (July 1973) Bull.Am.Acad.Psych. & L.
186; Kozol, Boucher & Garofalo, The Diagnosis and Treatment of Dangerousness
(1972) 18 Crime & Delinq. 371; Justice & Birkman, An Effort to Distinguish
the Violent From the Nonviolent (1972) 65 So.Med.J. 703.)*fn5
In fact, precision has not even been attained in predicting who of those
having already committed violent acts will again become violent, a task
recognized to be of much simpler proportions. (Kozol, Boucher & Garofalo,
supra, 18 Crime & Delinq. 371, 384.)
|||This predictive uncertainty means that the number of disclosures will
necessarily be large. As noted above, psychiatric patients are encouraged
to discuss all thoughts of violence, and they often express such thoughts.
However, unlike this court, the psychiatrist does not enjoy the benefit
[17 Cal3d Page 462]
|||overwhelming hindsight in seeing which few, if any, of his patients will
ultimately become violent. Now, confronted by the majority's new duty, the
psychiatrist must instantaneously calculate potential violence from each
patient on each visit. The difficulties researchers have encountered in
accurately predicting violence will be heightened for the practicing psychiatrist
dealing for brief periods in his office with heretofore nonviolent patients.
And, given the decision not to warn or commit must always be made at the
psychiatrist's civil peril, one can expect most doubts will be resolved
in favor of the psychiatrist protecting himself.
|||Neither alternative open to the psychiatrist seeking to protect himself
is in the public interest. The warning itself is an impairment of the psychiatrist's
ability to treat, depriving many patients of adequate treatment. It is to
be expected that after disclosing their threats, a significant number of
patients, who would not become violent if treated according to existing
practices, will engage in violent conduct as a result of unsuccessful treatment.
In short, the majority's duty to warn will not only impair treatment of
many who would never become violent but worse, will result in a net increase
[17 Cal3d Page 463]
|||The second alternative open to the psychiatrist is to commit his patient
rather than to warn. Even in the absence of threat of civil liability, the
doubts of psychiatrists as to the seriousness of patient threats have led
psychiatrists to overcommit to mental institutions. This overcommitment
has been authoritatively documented in both legal and psychiatric studies.
(Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping
Coins in the Courtroom, supra, 62 Cal.L.Rev. 693, 711 et seq.; Fleming &
Maximov, The Patient or His Victim: The Therapist's Dilemma, 62 Cal.L.Rev.
1025, 1044-1046; Am. Psychiatric Assn. Task Force Rep. 8 (July 1974) Clinical
Aspects of the Violent Individual, pp. 23-24; see Livermore, Malmquist &
Meehl, On the Justifications for Civil Commitment, 117 U.Pa.L.Rev. 75, 84.)
This practice is so prevalent that it has been estimated that "as many
as twenty harmless persons are incarcerated for every one who will commit
a violent act." (Steadman & Cocozza, Stimulus/Response: We Can't
Predict Who Is Dangerous (Jan. 1975) 8 Psych. Today 32, 35.)
|||Given the incentive to commit created by the majority's duty, this already
serious situation will be worsened, contrary to Chief Justice Wright's admonition
"that liberty is no less precious because forfeited in a civil proceeding
than when taken as a consequence of a criminal conviction." (In re
Gary W. (1971)
5 Cal. 3d 296
, 307 [
96 Cal. Rptr. 1
486 P.2d 1201].
|||In adopting the act, the Legislature fully recognized the concerns that
must govern our decision today -- adequate treatment for the mentally ill,
safety of our society, and our devotion to individual liberty, making overcommitment
of the mentally ill abhorrent. (§ 5001.) Again, the Legislature balanced
these concerns in favor of nondisclosure (§ 5328), thereby promoting effective
treatment, reducing temptation for overcommitment, and ensuring greater
safety for our society. Psychiatric and legal expertise on the subject requires
the same judgment.
|||The tragedy of Tatiana Tarasoff has led the majority to disregard the
clear legislative mandate of the Lanterman-Petris-Short Act. Worse, the
majority impedes medical treatment, resulting in increased violence from
-- and deprivation of liberty to -- the mentally ill.
[17 Cal3d Page 464]
|||We should accept legislative and medical judgment, relying upon effective
treatment rather than on indiscriminate warning.
|||The judgment should be affirmed.
|||*fn1 The criminal prosecution stemming
from this crime is reported in People v. Poddar (1974)
10 Cal. 3d 750
111 Cal. Rptr. 910
518 P.2d 342].
|||*fn2 The therapist defendants include
Dr. Moore, the psychologist who examined Poddar and decided that Poddar
should be committed; Dr. Gold and Dr. Yandell, psychiatrists at Cowell Memorial
Hospital who concurred in Moore's decision; and Dr. Powelson, chief of the
department of psychiatry, who countermanded Moore's decision and directed
that the staff take no action to confine Poddar. The police defendants include
Officers Atkinson, Brownrigg and Halleran, who detained Poddar briefly but
released him; Chief Beall, who received Moore's letter recommending that
Poddar be confined; and Officer Teel, who, along with Officer Atkinson,
received Moore's oral communication requesting detention of Poddar.
|||*fn3 Plaintiffs' complaints allege merely
that defendant therapists failed to warn plaintiffs -- Tatiana's parents
-- of the danger to Tatiana. The complaints do not allege that defendant
therapists failed to warn Tatiana herself, or failed to warn persons other
than her parents who would be likely to apprise Tatiana of the danger. Such
omissions can properly be cured by amendment. As we stated in Minsky v.
City of Los Angeles (1974)
11 Cal. 3d 113
, 118-119 [
113 Cal. Rptr. 102
520 P.2d 726]
: "It is axiomatic that if there is a reasonable possibility that a
defect in the complaint can be cured by amendment or that the pleading liberally
construed can state a cause of action, a demurrer should not be sustained
without leave to amend." (Accord, La Sala v. American Sav. & Loan
5 Cal. 3d 864
, 876 [
97 Cal. Rptr. 849
489 P.2d 1113]
; Lemoge Electric v. County of San Mateo (1956)
46 Cal. 2d 659
, 664 [
297 P.2d 638]
; Beckstead v. Superior Court (1971)
21 Cal. App. 3d 780
, 782 [
98 Cal. Rptr. 779].
|||*fn4 See Merrill v. Buck (1962)
58 Cal. 2d 552
, 562 [
25 Cal. Rptr. 456
375 P.2d 304]
; Biakanja v. Irving (1958)
49 Cal. 2d 647
, 650 [
320 P.2d 16
, 65 A.L.R.2d 1358]; Walnut Creek Aggregates Co. v. Testing Engineers Inc.
248 Cal. App. 2d 690
, 695 [
56 Cal. Rptr. 700].
|||*fn5 This rule derives from the common
law's distinction between misfeasance and nonfeasance, and its reluctance
to impose liability for the latter. (See Harper & Kime, The Duty to
Control the Conduct of Another (1934) 43 Yale L.J. 886, 887.) Morally questionable,
the rule owes its survival to "the difficulties of setting any standards
of unselfish service to fellow men, and of making any workable rule to cover
possible situations where fifty people might fail to rescue . . . ."
(Prosser, Torts (4th ed. 1971) § 56, p. 341.) Because of these practical
difficulties, the courts have increased the number of instances in which
affirmative duties are imposed not by direct rejection of the common law
rule, but by expanding the list of special relationships which will justify
departure from that rule. (See Prosser, supra, § 56, at pp. 348-350.)
|||*fn6 The pleadings establish the requisite
relationship between Poddar and both Dr. Moore, the therapist who treated
Poddar, and Dr. Powelson, who supervised that treatment. Plaintiffs also
allege that Dr. Gold personally examined Poddar, and that Dr. Yandell, as
Powelson's assistant, approved the decision to arrange Poddar's commitment.
These allegations are sufficient to raise the issue whether a doctor-patient
or therapist-patient relationship, giving rise to a possible duty by the
doctor or therapist to exercise reasonable care to protect a threatened
person of danger arising from the patient's mental illness, existed between
Gold or Yandell and Poddar. (See Harney, Medical Malpractice (1973) p. 7.)
|||*fn7 When a "hospital has notice
or knowledge of facts from which it might reasonably be concluded that a
patient would be likely to harm himself or others unless preclusive measures
were taken, then the hospital must use reasonable care in the circumstances
to prevent such harm." (Vistica v. Presbyterian Hospital (1967)
67 Cal. 2d 465
, 469 [
62 Cal. Rptr. 577
432 P.2d 193].
) (Italics added.) A mental hospital may be liable if it negligently permits
the escape or release of a dangerous patient (Semler v. Psychiatric Institute
of Washington, D.C. (4th Cir. 1976) 44 U.S.L. Week 2439; Underwood v. United
States (5th Cir. 1966) 356 F.2d 92; Fair v. United States (5th Cir. 1956)
234 F.2d 288). Greenberg v. Barbour (E.D.Pa. 1971) 322 F.Supp. 745, upheld
a cause of action against a hospital staff doctor whose negligent failure
to admit a mental patient resulted in that patient assaulting the plaintiff.
|||*fn8 Kaiser v. Suburban Transportation
System (1965) 65 Wn.2d 461 [398 P.2d 14]; see Freese v. Lemmon (Iowa 1973)
210 N.W.2d 576 (concurring opn. of Uhlenhopp, J.).
|||*fn9 Ellis v. D'Angelo (1953)
116 Cal. App. 2d 310
253 P.2d 675]
, upheld a cause of action against parents who failed to warn a babysitter
of the violent proclivities of their child; Johnson v. State of California
69 Cal. 2d 782
73 Cal. Rptr. 240
447 P.2d 352]
, upheld a suit against the state for failure to warn foster parents of
the dangerous tendencies of their ward; Morgan v. County of Yuba (1964)
230 Cal. App. 2d 938
41 Cal. Rptr. 508]
, sustained a cause of action against a sheriff who had promised to warn
decedent before releasing a dangerous prisoner, but failed to do so.
|||*fn10 See, e.g., People v. Burnick
14 Cal. 3d 306
, 325-328 [
121 Cal. Rptr. 488
535 P.2d 352]
; Monahan, The Prevention of Violence, in Community Mental Health in the
Criminal Justice System (Monahan ed. 1975); Diamond, The Psychiatric Prediction
of Dangerousness (1975) 123 U.Pa.L.Rev. 439; Ennis & Litwack, Psychiatry
and the Presumption of Expertise: Flipping Coins in the Courtroom (1974)
62 Cal.L.Rev. 693.
|||*fn11 Defendant therapists and amicus
also argue that warnings must be given only in those cases in which the
therapist knows the identity of the victim. We recognize that in some cases
it would be unreasonable to require the therapist to interrogate his patient
to discover the victim's identity, or to conduct an independent investigation.
But there may also be cases in which a moment's reflection will reveal the
victim's identity. The matter thus is one which depends upon the circumstances
of each case, and should not be governed by any hard and fast rule.
|||*fn12 Counsel for defendant Regents
and amicus American Psychiatric Association predict that a decision of this
court holding that a therapist may bear a duty to warn a potential victim
will deter violence-prone persons from seeking therapy, and hamper the treatment
of other patients. This contention was examined in Fleming and Maximov,
The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev.
1025, 1038-1044; they conclude that such predictions are entirely speculative.
In In re Lifschutz, supra,
2 Cal. 3d 415
, counsel for the psychiatrist argued that if the state could compel disclosure
of some psychotherapeutic communications, psychotherapy could no longer
be practiced successfully. (
2 Cal. 3d at p. 426.
) We rejected that argument, and it does not appear that our decision in
fact adversely affected the practice of psychotherapy in California. Counsels'
forecast of harm in the present case strikes us as equally dubious.
We note, moreover, that
, enacted in 1965, established that psychotherapeutic communication is
not privileged when disclosure is necessary to prevent threatened danger.
We cannot accept without question counsels' implicit assumption that effective
therapy for potentially violent patients depends upon either the patient's
lack of awareness that a therapist can disclose confidential communications
to avert impending danger, or upon the therapist's advance promise never
to reveal nonprivileged threats of violence.
|||*fn13 Fleming and Maximov note that
"While [section 1024] supports the therapist's less controversial right
to make a disclosure, it admittedly does not impose on him a duty to do
so. But the argument does not have to be pressed that far. For if it is
once conceded . . . that a duty in favor of the patient's foreseeable victims
would accord with general principles of tort liability, we need no longer
look to the statute for a source of duty. It is sufficient if the statute
can be relied upon . . . for the purpose of countering the claim that the
needs of confidentiality are paramount and must therefore defeat any such
hypothetical duty. In this more modest perspective, the
Code's 'dangerous patient' exception may be invoked with some confidence
as a clear expression of legislative policy concerning the balance between
the confidentiality values of the patient and the safety values of his foreseeable
victims." (Italics in original.) Fleming & Maximov, The Patient
or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1063.
|||*fn14 Amicus suggests that a therapist
who concludes that his patient is dangerous should not warn the potential
victim, but institute proceedings for involuntary detention of the patient.
The giving of a warning, however, would in many cases represent a far lesser
inroad upon the patient's privacy than would involuntary commitment.
|||*fn15 See also Summary Report of the
Task Force on Confidentiality of the Council on Professions and Associations
of the American Psychiatric Association (1975).
|||*fn16 Moore argues that after Powelson
countermanded the decision to seek commitment for Poddar, Moore was obliged
to obey the decision of his superior and that therefore he should not be
held liable for any dereliction arising from his obedience to superior orders.
Plaintiffs in response contend that Moore's duty to members of the public
endangered by Poddar should take precedence over his duty to obey Powelson.
Since plaintiffs' complaints do not set out the date of Powelson's order,
the specific terms of that order, or Powelson's authority to overrule Moore's
decisions respecting patients under Moore's care, we need not adjudicate
this conflict; we pass only upon the pleadings at this stage and decide
if the complaints can be amended to state a cause of action.
|||*fn17 Division 5 includes the Lanterman-Petris-Short
Act and the Short-Doyle Act (community mental health services). Division
6 relates to programs for treatment of persons judicially committed as mentally
disordered sex offenders or mentally retarded. Division 7 encompasses treatment
at state and county mental hospitals, the Langley Porter Neuropsychiatric
Institute and the Neuropsychiatric Institute of the U.C.L.A. Medical Center.
|||*fn18 We have considered sua sponte
whether plaintiffs' complaints could be amended to assert a cause of action
against the police defendants under the principles of Restatement Second
of Torts (1965) section 321, which provides that "If the actor does
an act, and subsequently realizes or should realize that it has created
an unreasonable risk of causing physical harm to another, he is under a
duty to exercise reasonable care to prevent the risk from taking effect."
(See Hartzler v. City of San Jose, supra,
46 Cal. App. 3d 6
, 10.) The record, however, suggests no facts which, if inserted into the
complaints, might form the foundation for such cause of action. The assertion
of a cause of action against the police defendants under this theory would
raise difficult problems of causation and of public policy, which should
not be resolved on the basis of conjectural facts not averred in the pleadings
or in any proposed amendment to those pleadings.
|||*fn19 No more specific immunity provision
of the Government Code appears to address the issue.
|||*fn20 Section 815.2 of the Government
Code declares that "[a] public entity is liable for injury proximately
caused by an act or omission of an employee of the public entity within
the scope of his employment if the act or omission would, apart from this
section, have given rise to a cause of action against that employee or his
personal representative." The section further provides, with exceptions
not applicable here, that "a public entity is not liable for an injury
resulting from an act or omission of an employee of the public entity where
the employee is immune from liability." The Regents, therefore, are
immune from liability only if all individual defendants are similarly immune.
|||*fn21 We dismissed, in Johnson, the
view that immunity continues to be necessary in order to insure that public
employees will be sufficiently zealous in the performance of their official
duties. The California Tort Claims Act of 1963 provides for indemnification
of public employees against liability, absent bad faith, and also permits
such employees to insist that their defenses be conducted at public expense.
(See Gov. Code, §§ 825-825.6, 995-995.2.) Public employees thus no longer
have a significant reason to fear liability as they go about their official
tasks. We also, in Johnson, rejected the argument that a public employee's
concern over the potential liability of his or her employer serves as a
basis for immunity. (Johnson v. State of California, supra, at pp. 790-793.)
|||*fn22 By analogy, section 830.8 of
the Government Code furnishes additional support for our conclusion that
a failure to warn does not fall within the zone of immunity created by section
820.2. Section 830.8 provides: "Neither a public entity nor a public
employee is liable . . . for an injury caused by the failure to provide
traffic or warning signals, signs, markings or devices described in the
Code. Nothing in this section exonerates a public entity or public employee
from liability for injury proximately caused by such failure if a signal,
sign, marking or device . . . was necessary to warn of a dangerous condition
which endangered the safe movement of traffic and which would not be reasonably
apparent to, and would not have been anticipated by, a person exercising
due care." The Legislature thus concluded at least in another context
that the failure to warn of a latent danger is not an immunized discretionary
omission. (See Hilts v. County of Solano (1968)
265 Cal. App. 2d 161
, 174 [
71 Cal. Rptr. 275].
|||*fn23 Section 856 includes the exception
to the general rule of immunity "for injury proximately caused by .
. . negligent or wrongful acts or omission in carrying out or failing to
carry out . . . a determination to confine or not to confine a person for
mental illness . . . ."
|||*fn24 Because Dr. Gold and Dr. Yandell
were Dr. Powelson's subordinates, the analysis respecting whether they are
immune for having failed to obtain Poddar's confinement is similar to the
analysis applicable to Dr. Moore.
|||*fn25 Welfare and Institutions Code
section 5008, subdivision (i), defines "peace officer" for purposes
of the Lanterman-Petris-Short Act as a person specified in sections
Code. Campus police do not fall within the coverage of section 830.1 and
were not included in section 830.2 until 1971.
|||*fn1 All statutory references, unless
otherwise stated, are to the Welfare and Institutions Code.
|||*fn2 Section 5328 provides: "All
information and records obtained in the course of providing services under
Division 5 (commencing with Section 5000), Division 6 (commencing with Section
6000), or Division 7 (commencing with Section 7000), to either voluntary
or involuntary recipients of services shall be confidential. Information
and records may be disclosed only: [ para. ] (a) In communications between
qualified professional persons in the provision of services or appropriate
referrals, or in the course of conservatorship proceedings. The consent
of the patient, or his guardian or conservator must be obtained before information
or records may be disclosed by a professional person employed by a facility
to a professional person not employed by the facility who does not have
the medical responsibility for the patient's care. [ para. ] (b) When the
patient, with the approval of the physician in charge of the patient, designates
persons to whom information or records may be released, except that nothing
in this article shall be construed to compel a physician, psychologist,
social worker, nurse, attorney, or other professional person to reveal information
which has been given to him in confidence by members of a patient's family;
[ para. ] (c) To the extent necessary for a recipient to make a claim, or
for a claim to be made on behalf of a recipient for aid, insurance, or medical
assistance to which he may be entitled; [ para. ] (d) If the recipient of
services is a minor, ward, or conservatee, and his parent, guardian, or
conservator designates, in writing, persons to whom records or information
may be disclosed, except that nothing in this article shall be construed
to compel a physician, psychologist, social worker, nurse, attorney, or
other professional person to reveal information which has been given to
him in confidence by members of a patient's family; [ para. ] (e) For research,
provided that the Director of Health designates by regulation, rules for
the conduct of research. Such rules shall include, but need not be limited
to, the requirement that all researchers must sign an oath of confidentiality
Date As a condition of doing research concerning persons who have received
services from (fill in the facility, agency or person), I, , agree not
to divulge any information obtained in the course of such research to
unauthorized persons, and not to publish or otherwise make public any
information regarding persons who have received services such that the
person who received services is identifiable. I recognize that unauthorized
release of confidential information may make me subject to a civil action
under provisions of the Welfare and Institutions Code. Signed [ para.
] (f) To the courts, as necessary to the administration of justice. [
para. ] (g) To governmental law enforcement agencies as needed for the
protection of federal and state elective constitutional officers and their
families. [ para. ] (h) To the Senate Rules Committee or the Assembly
Rules Committee for the purposes of legislative investigation authorized
by such committee. [ para. ] (i) If the recipient of services who applies
for life or disability insurance designates in writing the insurer to
which records or information may be disclosed. [ para. ] (j) To the attorney
for the patient in any and all proceedings upon presentation of a release
of information signed by the patient, except that when the patient is
unable to sign such release, the staff of the facility, upon satisfying
itself of the identity of said attorney, and of the fact that the attorney
does represent the interests of the patient, may release all information
and records relating to the patient except that nothing in this article
shall be construed to compel a physician, psychologist, social worker,
nurse, attorney, or other professional person to reveal information which
has been given to him in confidence by members of a patient's family.
[ para. ] The amendment of subdivision (d) of this section enacted at
the 1970 Regular Session of the Legislature does not constitute a change
in, but is declaratory of, the preexisting law." Subdivisions (g),
(h), and (i) were added by amendment in 1972. Subdivision (j) was added
by amendment in 1974. Section 5328, specifically enumerating exceptions
to the confidentiality requirement, does not admit of an interpretation
importing implied exceptions. (County of Riverside v. Superior Court,
42 Cal. App. 3d 478
, 481 [
116 Cal. Rptr. 886].
|||*fn3 One survey indicated that five
of every seven people interviewed said they would be less likely to make
full disclosure to a psychiatrist in the absence of assurance of confidentiality.
(See, Comment, Functional Overlap Between the Lawyer and Other Professionals:
Its Implications for the Privileged Communications Doctrine (1962) 71 Yale
L.J. 1226, 1255.)
|||*fn4 The burden placed by the majority
on psychiatrists may also result in the improper deprivation of two other
constitutionally protected rights. First, the patient's constitutional right
of privacy (In re Lifschutz, supra,
2 Cal. 3d 415
) is obviously encroached upon by requiring the psychotherapist to disclose
confidential communications. Secondly, because confidentiality is essential
to effective treatment, the majority's decision also threatens the constitutionally
recognized right to receive treatment. (People v. Feagley (1975)
14 Cal. 3d 338
, 359 [
121 Cal. Rptr. 509
535 P.2d 373]
; Wyatt v. Stickney (M.D.Ala. 1971) 325 F.Supp. 781, 784, affd. sub nom.
Wyatt v. Aderholt (5th Cir. 1974) 503 F.2d 1305; Nason v. Superintendent
of Bridgewater State Hosp. (1968) 353 Mass. 604 [233 N.E.2d 908].)
|||*fn5 A shocking illustration of psychotherapists'
inability to predict dangerousness, cited by this court in People v. Burnick,
14 Cal. 3d 306
, 326-327, footnote 17, is cited and discussed in Ennis, Prisoners of Psychiatry:
Mental Patients, Psychiatrists, and the Law (1972): "In a well-known
study, psychiatrists predicted that 989 persons were so dangerous that they
could not be kept even in civil mental hospitals, but would have to be kept
in maximum security hospitals run by the Department of Corrections. Then,
because of a United States Supreme Court decision, those persons were transferred
to civil hospitals. After a year, the Department of Mental Hygiene reported
that one-fifth of them had been discharged to the community, and over half
had agreed to remain as voluntary patients. During the year, only 7 of the
989 committed or threatened any act that was sufficiently dangerous to require
retransfer to the maximum security hospital. Seven correct predictions out
of almost a thousand is not a very impressive record. [ para. ] Other studies,
and there are many, have reached the same conclusion: psychiatrists simply
cannot predict dangerous behavior." (Id., at p. 227.) Equally illustrative
studies are collected in Rosenhan, On Being Sane in Insane Places (1973)
13 Santa Clara Law. 379, 384; Ennis & Litwack, Psychiatry and the Presumption
of Expertise: Flipping Coins in the Courtroom, supra, 62 Cal.L.Rev. 693,
|||*fn6 The majority concedes that psychotherapeutic
dialogue often results in the patient expressing threats of violence that
are rarely executed. (Ante, p. 441.) The practical problem, of course, lies
in ascertaining which threats from which patients will be carried out. As
to this problem, the majority is silent. They do, however, caution that
a therapist certainly "should not be encouraged routinely to reveal
such threats; such disclosures could seriously disrupt the patient's relationship
with his therapist and with the persons threatened." (Id.)
Thus, in effect, the majority informs the therapists that they must accurately
predict dangerousness -- a task recognized as extremely difficult -- or
face crushing civil liability. The majority's reliance on the traditional
standard of care for professionals that "therapist need only exercise
'that reasonable degree of skill, knowledge, and care ordinarily possessed
and exercised by members of [that professional specialty] under similar
circumstances'" (ante, p. 438) is seriously misplaced. This standard
of care assumes that, to a large extent, the subject matter of the specialty
is ascertainable. One clearly ascertainable element in the psychiatric
field is that the therapist cannot accurately predict dangerousness, which,
in turn, means that the standard is inappropriate for lack of a relevant
criterion by which to judge the therapist's decision. The inappropriateness
of the standard the majority would have us use is made patent when consideration
is given to studies, by several eminent authorities, indicating that "[the]
chances of a second psychiatrist agreeing with the diagnosis of a first
psychiatrist 'are barely better than 50-50; or stated differently, there
is about as much chance that a different expert would come to some different
conclusion as there is that the other would agree.'" (Ennis &
Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in
the Courtroom, supra, 62 Cal.L.Rev. 693, 701, quoting, Ziskin, Coping
With Psychiatric and Psychological Testimony, p. 126.) The majority's
attempt to apply a normative scheme to a profession which must be concerned
with problems that balk at standardization is clearly erroneous. In any
event, an ascertainable standard would not serve to limit psychiatrist
disclosure of threats with the resulting impairment of treatment. However
compassionate, the psychiatrist hearing the threat remains faced with
potential crushing civil liability for a mistaken evaluation of his patient
and will be forced to resolve even the slightest doubt in favor of disclosure
The Law, Science & Public
Health Law Site
The Best on the WWW Since 1995!
Copyright as to non-public domain materials
See DR-KATE.COM for home hurricane and disaster preparation
See WWW.EPR-ART.COM for photography of southern Louisiana and Hurricane Katrina
Professor Edward P. Richards, III, JD, MPH - Webmaster