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Schopp & Quattrocchi in Journal of Psychiatry & Law (Spring 1984) 12. Copyright 1985, Federal Legal Publications. Used by permission.


The California Supreme Court, in its controversial Tarasoff decision, ruled that a psychotherapist may be found negligent when he fails to prevent his patient from harming someone.

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 on the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

The court based this decision on the doctrine of special relationships, which provides a basis for the duty to control the behavior of third parties, and on the policy considerations involved in protecting the public from dangerous assault. The reasoning presented by the court in Tarasoff has been accepted by courts in Pennsylvania, Nebraska, and New Jersey.

The Tarasoff decision evoked considerable controversy and numerous commentaries, many of which discussed the adequacy of professional standards for the prediction of dangerousness or the policy considerations involved in the decision. The most commonly identified policy issue concerned the debate over whether warning the potential victim would increase or decrease the probability of harm. The competing public interest in promoting effective psychotherapy (particularly for potentially dangerous patients) and the role of confidentiality in this interest also received significant attention.

There remains a rather puzzling aspect of the court's decision which has not been resolved in the Tarasoff literature. The court defined a duty for a therapist who determines or should determine that his patient presents a serious danger of violence when it had already cited a strong body of evidence demonstrating that therapists cannot determine this; i.e., the court simultaneously declared that therapists must act upon a judgment and acknowledged that this judgment lies beyond the capacity of the profession.6 It is important to note that the court did not refute or even question this evidence. Rather, the court cited the doctrine of special relationships as the source of a duty to control third parties, argued that the psychotherapist's diagnosis and prediction of danger are comparable to judgments that doctors and other professionals must regularly make, and concluded that therapists must predict and warn to the standards of the profession.

Hence, the doctrine of special relationships is the cornerstone of the court's argument in favor of a duty to warn. While the court definitely asserts that the psychotherapeutic relationship is such a special relationship, it does not indicate exactly what makes a relationship special in this sense or what it is about psychotherapy that renders it such a relationship.

This article will concentrate on this specific aspect of the Tarasoff decision. We will advance an analysis of the doctrine of special relationships as contained in the sources cited by the Tarasoff court in order to determine whether the psychotherapeutic relationship falls within the scope of this doctrine and, if so, what duties follow. We will argue that the conceptual relationship among the doctrine of special relationships, the duty to warn, and the inability to predict is such that when clearly explicated and interpreted in light of the psychotherapist's inability to predict, this doctrine cannot be appropriately applied and, hence, it cannot provide a foundation for a duty to warn or for any other duty which presupposes a capacity to predict.

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