Download Tarasoff Duties After Newtown

TARASOFF DUTIES AFTER NEWTOWN*
Mark A. Rothstein
After recent tragedies involving mass murders on a college campus in Virginia,1 an Army base in
Texas,2 a congressional constituent event at a shopping center in Arizona,3 and a movie theater in
Colorado,4 one might have assumed the public had become numb to horrendous and senseless
acts of killing. If so, one would have been wrong. The public was not prepared for the brutal and
cold-blooded murder of twenty first-grade school children and six teachers and staff at Sandy
Hook Elementary School in Newtown, Connecticut, on December 14, 2012.5
Following the all-too-familiar emotional stages of shock, grief, and anger, many members
of the public and elected officials turned to the issue of how to prevent such tragedies in the
future. Two main questions quickly became the focus of policy makers. First, is it politically
feasible and practically effective to restrict access to military-style assault weapons and largecapacity magazines that enable these mass murders? Second, is it possible for mental health
professionals, family members, and others to identify serious threats and to intervene with
mentally unstable individuals in time to prevent future tragedies?
This article is concerned with one aspect of the mental health issue, whether a mental
health professional has a duty to protect threatened victims. After reviewing the inconsistent and
confusing interpretations of the Tarasoff doctrine and related principles the article proposes a
strategy for developing and implementing a unitary, national standard for health care providers’
privilege to disclose confidential information and their duty to protect individuals threatened by
potentially violent mental health patients.
The facts of Tarasoff
Although the basic facts of the Tarasoff case are well known to most readers of this journal, a
more complete version may be valuable.6 Tatiana (Tanya) Tarasoff was born in China to Russian
parents, grew up in Sao Paolo, Brazil, and moved with her family to Berkeley, California, in
1963, six years before her death. Prosenjit Poddar grew up in a small Bengazi village in northern
India as a member of the Harijan or “untouchable” caste. He managed to overcome his modest
start in life to graduate from the Indian Institute of Technology in 1961. He came to the United
States in 1967 as a graduate student in naval architecture at the University of California at
Berkeley and lived at the International Student House (ISH).
*
This article expands on themes addressed by the author in written, oral, and follow-up
testimony presented to the Subcommittee on Investigations and Oversight, House Committee on
Energy and Commerce, April 26, 2013. See http://energycommerce.house.gov/hearing/doeshipaa-help-or-hinder-patient-care-and-public-safety (last accessed September 9, 2013).
1
Poddar had a difficult time adjusting from Indian to American culture, particularly
relations with women. He had attended all-male schools and had little experience with girls.
Poddar met Tanya in the fall of 1968 while she was taking folk dancing classes at the ISH. When
Tanya kissed Poddar at the ISH on New Year’s Eve, 1968, he believed Tanya had a romantic
interest in him. When he attempted to have a relationship with Tanya, however, he was
continually rebuffed. He was especially distressed to learn that she was having sexual relations
with other men. Poddar began to deteriorate mentally, missing classes and work, and spending
hours alone in his room. He told friends he was going to kill Tanya.
Tanya went to Brazil during the summer of 1969 and during her absence, at the
suggestion of a friend, Poddar began undergoing counseling at the Cowell Memorial Hospital at
the University of California at Berkeley, beginning with an emergency session on June 5, 1969.
On August 20, 1969, while in a counseling session with Dr. Lawrence Moore, a clinical
psychologist, Poddar confided that he planned to kill Tanya. Dr. Moore diagnosed Poddar as
suffering from “paranoid schizophrenic reaction, acute and severe.” Dr. Moore and two
colleagues, Dr. Stuart Gold and Dr. James Yandell, believed Poddar presented a danger to
himself and others. Dr. Moore called campus police and urged them to commit Poddar to a
mental hospital. The campus police detained Poddar and searched his room, but because he
seemed rational they did not attempt to have him committed. They released him after he
promised to stay away from Tanya. Dr. Harvey Powelson, Dr. Moore’s superior, then directed
that no further action be taken to detain Poddar. After this incident, Poddar did not seek any
additional treatment.7
At about the same time, July 1969, Poddar began to room with Alex Tarasoff, Tanya’s
brother, with whom he shared some technical interests. Alex warned Poddar to leave his sister
alone, although he did not believe that Poddar intended to kill her. When Tanya returned from
Brazil in October 1969, she recounted her romantic escapades in Brazil and Poddar learned that
she was having relations with other men. On October 27, 1969, through Alex, Poddar learned
that Tanya was alone at home. Poddar went to her house, argued with her, shot her with a pellet
gun, and stabbed her seventeen times with a kitchen knife.
Poddar was arrested and charged with murder. Rejecting his insanity defense, a jury
convicted Poddar of second-degree murder. On appeal, the California Court of Appeals reduced
his conviction to manslaughter. The Supreme Court of California then ordered a new trial
because of the trial judge’s failure to instruct on the issue of diminished capacity. Poddar was
never retried. The State of California allowed him to return to India, where he reportedly married
a lawyer and lived a normal life.
Procedural history
Tanya Tarasoff’s parents brought a wrongful death action in Alameda County Circuit Court
against the University of California and several individual defendants (campus security
personnel and mental health professionals). The court dismissed all of the actions and the
plaintiffs appealed. The California Court of Appeals affirmed the dismissal of all the wrongful
death actions, holding that the decision not to proceed with a seventy-two hour evaluation of
2
Poddar was an exercise of discretion for which California law provided immunity to public
employees.8
The California Supreme Court reversed and remanded the case, holding that even though
the defendant-psychotherapists did not have a professional relationship with the victim, they still
had a duty to exercise due care to warn her of peril.9 The court held that neither the campus
police nor the therapists were statutorily immune for the alleged failure to confine Poddar. The
court’s opinion was quite controversial, and the Supreme Court granted a rehearing in the case.10
In its second decision in the case, the California Supreme Court affirmed dismissal of the actions
against the campus police on the grounds of immunity, but remanded for trial on the asserted
liability of the therapists for their failure to protect a foreseeable victim of a threat. The case was
settled one year after the second decision of the California Supreme Court.11
Majority opinion
In an opinion by Justice Matthew Tobriner, the California Supreme Court held that the plaintiffs
stated a cause of action against the psychotherapists.12 The court held that the special
relationship between a patient and his or her doctor or psychotherapist may support affirmative
duties for the benefit of third parties. The court rejected the argument that establishing a duty to
exercise reasonable care to protect third parties is unworkable because therapists cannot
accurately predict whether a patient will resort to violence. The court stated that a therapist need
not “render a perfect performance” and that the law only requires a therapist to exercise “`that
reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members
of (that professional specialty) under similar circumstances.’”13 The court also pointed out that,
in this case, Dr. Moore was accurate in his prediction of violence; the alleged act of negligence
was his failure to warn Tanya.
The court next rejected the argument that recognizing a cause of action for failure to
exercise reasonable care to protect the foreseeable victim of a threat would result in unnecessary
warnings. The court said that “[t]he risk that unnecessary warnings may be given is a reasonable
price to pay for the lives of possible victims that may be saved.”14
The court also rejected the argument that the possibility of issuing warnings based on
information disclosed in psychotherapy would undermine the free and open communications
essential to counseling. The court conceded the importance of protecting the patient’s interest in
privacy, but noted the public interest in safety from violent assault.15 “The protective privilege
ends where the public peril begins.”16 The court reiterated that only reasonable care is required.
“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.”17
Although Tarasoff is often regarded as establishing a duty to warn the intended victim of
a violent threat, the duty recognized by the court is broader. It requires a mental health
professional to take reasonable and necessary action to protect the threatened individual, which
could include having the patient confined, notifying law enforcement, warning the intended
victim, or other measures to protect the intended victim.18
3
Dissent
Justice William Clark, joined by Justice Marshall McComb, dissented. Clark opposed
establishing any duty on the part of a mental health professional based on information disclosed
in therapy. He asserted that if confidentiality were undermined, the therapist-patient relationship
would be irreparably destroyed.19 His argument was essentially in three parts: (1) deterrence –
people will not seek mental health treatment if they believe their mental health information will
be shared with others; (2) full disclosure – confidentiality allows a patient to provide complete
and accurate information essential to treatment; and (3) trust – assurance that that a patient’s
communications are confidential is essential to building trust. These same arguments are often
made today.
State law responses to Tarasoff
Tarasoff raised numerous questions about when mental health professionals have a duty to act,
what conduct or communications by the patient gives rise to the duty, and what actions by the
mental health professional will satisfy the duty.20 Although early adoptions of the Tarasoff rule
in other jurisdictions came about through judicial opinions,21 the duty to protect, often expressed
as merely the duty to warn, soon became codified by state legislation. In California, a statute
enacted in 1986 and amended in 2007 provides that if a duty to protect exists, there is no liability
for a therapist who notifies the police and makes a reasonable effort to notify the intended
victim.22
In reviewing the state statutes it is clear there is no single Tarasoff duty, but fifty-one
jurisdiction-specific duties.23 As of 2013, twenty-nine states have laws mandating the reporting
of serious threats,24 sixteen states and the District of Columbia have permissive reporting laws,25
four states have no duty to report,26 and one state (Georgia) has its own unique law.27
Some state statutes apply different standards to different professionals (e.g.,
psychologists, social workers).28 Other state laws differ on the circumstances when warnings or
other actions are appropriate or vary in the individuals or entities that must be protected.29
Finally, some states grant immunity from liability if the mental health professional complies with
certain statutory requirements.30
Professional guidelines
Groups representing mental health professionals, such as the American Psychiatric Association,
submitted amicus curiae briefs in favor of the defendants in Tarasoff and opposing possible
liability for failing to protect the objects of threats.31 Therefore, it is not surprising that these
professional organizations and many of their members have not embraced the Tarasoff decision
or some of the subsequent state statutes. Beyond the general opposition to imposing a duty to
protect third parties, there is wide variation in the ethical pronouncements of the professional
organizations on the privilege to disclose confidential information and the duty to act on the
basis of a threat disclosed in psychotherapy.
4
The American Medical Association (AMA) Code of Medical Ethics applies to all
physicians, not merely psychiatrists. Section 5.05 provides in pertinent part: “When a patient
threatens to inflict serious physical harm to another person or to himself or herself and there is a
reasonable probability that the patient may carry out the threat, the physician should take
reasonable precautions for the protection of the intended victim, which may include notification
of law enforcement authorities.”32 Of note, there is no specific mention of warning the threatened
individual.
The codes of ethics of mental health specialists are even less demanding. They simply
focus on when it is permissible to breach confidentiality and do not mention a duty to protect or
warn at-risk individuals. The American Psychological Association’s Ethical Principles of
Psychologists and Code of Conduct section 4.05(b)(3) provides that disclosure of confidential
information is permitted to “protect the client/patient, psychologist, or others from harm.”33
Although the purpose of disclosure is protection, there is no indication of the specifics of
disclosure. Also, the psychologist is expressly included within the group of persons whose safety
would justify the disclosure of confidential information. The American Psychiatric Association’s
Principles of Medical Ethics also addresses the privilege to disclose confidential information.
Section 4, point 8 provides: “When, in the clinical judgment of the treating psychiatrist, the risk
of danger is deemed to be significant, the psychiatrist may reveal confidential information
disclosed by the patient.”34 The statement is noteworthy for its vagueness.
Disclosures under the HIPAA Privacy Rule
The Health Insurance Portability and Accountability Act (HIPAA)35 provides for the Secretary of
Health and Human Services (HHS) to issue regulations establishing standards for the privacy of
individually identifiable health information. Because HIPAA and its Privacy Rule36 are
applicable only to those entities in the health care payment chain, there are only three types of
entities covered by the Privacy Rule: health care providers, health plans, and health
clearinghouses (and, after a 2013 amendment, their business associates).37
Although it was not intended by Congress in the HIPAA statute or HHS in its
rulemaking, the HIPAA Privacy Rule has become the de facto legal standard for health privacy
issues involving both covered and noncovered entities in the United States. Therefore, what the
Privacy Rule prescribes about health information uses and disclosures is exceedingly important.
One provision of the Privacy Rule permits a covered entity to disclose twelve types of health
information of importance to the public (e.g., for public health) without the need for the patient’s
consent or authorization so long as the disclosures are described in the entity’s notice of privacy
practices.38 One of these exceptions, disclosures “to avert a serious threat to health or safety,”
provides in pertinent part:
(j) Standard: Uses and disclosures to avert a serious threat
to health or safety.
(1) Permitted disclosures. A covered entity may, consistent
with applicable law and standards of ethical conduct, use or disclose
5
protected health information, if the covered entity, in good faith,
believes the use or disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent
threat to the health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or
lessen the threat, including the target of the threat . . .39
There are two main problems with this regulation. First, the requirement of “imminence”
sets the bar too high for disclosure. Imminence implies such immediacy that many mental health
professionals might believe that even a deeply troubled and dangerous person who made credible
threats did not expressly indicate that he or she was planning to take imminent action to carry out
the threats. In Tarasoff, Poddar did not kill Tanya until ten weeks after he disclosed to Dr. Moore
his intent to do so. Perhaps that is why the Tarasoff decision does not use the word “imminent”
to describe the type of threat giving rise to a mental health provider’s duty to protect or warn.
Nevertheless, eighteen states and the District of Columbia require that to establish a duty to act a
threat must be “imminent” or “immediate.”40 Although the imminence requirement likely was
intended to limit the duties of mental health professionals, it is equally likely to result in
confusion and a reluctance to take action to prevent harms. The drafters of the Privacy Rule erred
by including the requirement of “imminence,” and it should be removed as soon as possible.
The second problem with the regulation is that it defers to “applicable law and standards
of ethical conduct.” As noted above, the legal standards differ significantly among the states and
the professional standards are vague and permissive. Consequently, the Privacy Rule, by
specifically referencing these standards, contributes to the confusion about both when it is
permissible to breach confidentiality and when it is necessary to take action to protect the
intended victims of violent threats. Because of this confusion some uninformed and risk-averse
mental health providers may be reluctant to invoke their privilege to breach confidentiality and to
exercise their duty to act. Such reticence could result in the failure to prevent a life-threatening
situation.
Toward a unitary, national standard for a privilege to disclose and a duty to protect
The first goal for reforming mental health disclosures and actions to protect third parties should
be to provide clarity, certainty, and predictability. Ultimately, the objective should be to
harmonize disparate state laws and federal regulations. From a legal standpoint, the problem of
harmonization is complex, but not insoluble. One potential strategy is to begin by amending the
HIPAA Privacy Rule.
For reasons of federalism, Congress is unlikely to enact legislation establishing a national
standard for the duty to protect threatened victims because it involves matters traditionally within
the purview of state law (e.g., regulation of health care providers; tort law). Similarly, because
the statutory language of HIPAA only grants HHS limited regulatory powers, HHS would be
unable to set a national standard for the duty to protect through HIPAA-based rulemaking.
Nevertheless, it may be possible to achieve the goal of substantial national uniformity for both
the privilege to breach confidentiality and the duty to protect indirectly by utilizing existing
legislation and a two-step process of harmonization.
6
First, HHS has the statutory authority to establish rules for when it is permissible under
the Privacy Rule for a covered entity to breach confidentiality to avert a serious threat to health
or safety. Indeed, HHS already has promulgated such a rule, but, as described above, it should be
amended. After considering the views of all stakeholders, HHS should amend the current
regulation and promulgate an explicit and detailed new regulation. For example, such a
regulation could provide that when a psychotherapist or other provider of mental health services
makes a reasonable determination that a patient constitutes a threat to cause death or serious
harm to one’s self or another, the provider is permitted, under the Privacy Rule, to disclose
protected health information to law enforcement personnel, any intended victim or victims, or
others who are in a position to avert the harm. HHS should delete the “imminence” requirement
as well as the reference to “applicable law and standards of ethical conduct.”
Amendment of the Privacy Rule should be accompanied by comprehensive guidance and
specific examples. HHS also should work with professional associations, state and local
governments, nongovernmental organizations, and consumer groups to provide meaningful
notice and information about the amended regulation.
The second step involves the states. As noted, the amended HIPAA Privacy Rule
provision would not expressly address the issue of when a health care provider has an affirmative
duty to act. At least initially, the duty to protect third parties would remain a matter of state law,
especially with regard to tort liability. However, after a new, well considered Privacy Rule
provision is promulgated with widespread input, it is foreseeable that many states would move to
harmonize their laws with the new federal regulation. State legislative initiatives to coordinate
with the federal regulation are likely to receive strong support from consumer groups, the public,
and perhaps even mental health professionals because having reasonable and uniform federal and
state laws is not only easier for all affected individuals to understand, it is likely to prevent
serious risks to safety and thereby save lives. Even if amending state laws is a difficult or a
drawn-out process, amending the Privacy Rule privilege to disclose confidential information will
be a major improvement.
While the Privacy Rule is being amended, all other federal laws and regulations dealing
with the disclosure of mental health information and the duty to protect third parties should be
reviewed and, as needed, amended to achieve consistency. Of particular importance are the
Family and Educational Rights and Privacy Act (FERPA)41 and the implementing regulations of
the Department of Education.42 FERPA applies to most public and private postsecondary
institutions and to the health records of students at campus health clinics, where some of the
perpetrators of mass murders had been patients.43 The FERPA regulations provide: “An
educational agency or institution may disclose personally identifiable information from an
education record to appropriate parties, including parents of an eligible student, in connection
with an emergency if knowledge of the information is necessary to protect the health or safety of
the student or other individuals.”44 This permissive provision is broadly worded and, unlike the
analogous HIPAA provision, does not require an imminent threat, although it requires an
“emergency.”
Other issues
7
This article is concerned with only one aspect of the Tarasoff doctrine. The duty to protect is far
more complicated than presented here, and various issues remain, including the following: Does
the duty to protect arise from general threats of violence or does the patient need to identify an
individual victim? How severe (e.g., assault vs. murder), likely (e.g., possible vs. definite), and
imminent (e.g., tomorrow vs. next year) does the threat need to be to trigger the duty to protect?
Does the duty apply to all health professionals (e.g., primary care physicians) or only mental
health professionals (e.g., psychiatrists, clinical psychologists)? These issues should be addressed
through amended, harmonizing state statutes and developing case law.
Conclusion
Individual mental health as well as public health and safety are advanced by maintaining strong
protections for the privacy and confidentiality of mental health information, including
information disclosed in psychotherapy. At the same time, for the small number of individuals
with severe mental illness who constitute a serious threat to self or others, it is essential to have
legal standards for the duty to protect victims of threats that are reasonable, uniform, well
understood, and consistently followed. The current legal situation is inconsistent and confusing,
thereby likely contributing to a reluctance to act by mental health professionals.
The first step in remedying the situation is to amend the HIPAA Privacy Rule. This
should be followed by efforts to harmonize relevant federal statutes and regulations dealing with
the disclosure of mental health information. Finally, consistent state laws should clarify the duty
of mental health professionals to protect individuals who are the object of violent threats,
including, as appropriate, notifying law enforcement and warning the individual. These measures
will reduce the risk of violence by severely disturbed mental health patients while preserving the
confidentiality upon which timely and effective treatment depends.
Acknowledgment:
Nicholas Craddock, J.D. 2014, contributed excellent research assistance.
1
Seung-Hui Cho, a 23-year-old student at Virginia Tech with a long history of mental illness, killed 32 students and
faculty and wounded 17 others on campus in Blacksburg, Virginia, on April 16, 2007. He also killed himself after
the attack.
2
Major Nidal Malik Hassan, a 39-year-old Army psychiatrist who was described as increasingly isolated and under
pressure, killed 13 and wounded 32 at Fort Hood, Killeen, Texas, on November 5, 2009. He was convicted of
murder by a military court in 2013.
3
Jared Lee Loughner, a 22-year-old exhibiting symptoms of mental illness, killed six and wounded 13 (including
then-Rep. Gabrielle Giffords) outside a Safeway supermarket in Tucson, Arizona, on January 8, 2011. He pled
guilty to 19 counts of murder or attempted murder.
4
James Eagan Holmes, a 24-year-old with a history of mental illness, killed 12 and wounded 70 at a movie theater
in Aurora, Colorado, on July 20, 2012. He is awaiting trial.
8
5
Adam Lanza, a 20-year-old who had Asperger’s syndrome, but no diagnosed mental illness, killed 20 children and
six adults, not counting his mother and later himself, in Newtown, Connecticut, on December 14, 2012.
6
See Fillmore Buckner and Marvin Firestone, “‘Where the Public Peril Begins’: 25 Years After Tarasoff,” Journal
of Legal Medicine 21, no. 2 (2000): 187-222.
7
It has been asserted that reporting Poddar’s threat to the campus police actually made matters worse because he
stopped counseling. Buckner and Firestone, supra note 6, at 194. It is unclear whether additional counseling would
have prevented the attack on Tanya, and a jury could well have determined that more effective steps to protect
Tanya, including warning her of Poddar’s threats, would have prevented her murder.
8
Tarasoff v. Regents of Univ. of Cal., 108 Cal. Rptr. 878 (Cal. Ct. App. 1973).
9
Tarasoff v. Regents of Univ. of Cal., 529 P.2d 553 (Cal. 1974).
10
Buckner & Firestone, supra note 6, at 196.
11
Vanessa Merton, “’Dangerous‘ Patient: Implications of Tarasoff for Psychiatrists and Lawyers.” Emory Law
Journal 31, no. 2 (1982): 263-343, 295.
12
Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334 (Cal. 1976).
13
Id. at 345.
14
Id. at 346.
15
Id. at.
16
Id. at 347.
17
Id.
18
See Charles E. Cantu & Margaret H. Jones, “Bitter Medicine: A Critical Look at the Mental Health Care
Provider’s Duty to Warn in Texas,” St. Mary’s Law Journal 31, no. 2 (2000): 359-403, 377-78.
19
The term physician-patient relationship is normally used to characterize an individual’s relationship with a
medical doctor, and psychotherapists may be clinical psychologists, social workers, or individuals with other
training. The nonphysician therapists commonly refer to the individuals they counsel as “clients.” For the sake of
consistency, the term therapist-patient relationship is used in this article to apply to all psychotherapists and those
they counsel.
20
See generally Peter F. Lake, “Revisiting Tarasoff,” Albany Law Review 58, no. 1 (1994): 97-173.
21
See, e.g., Bardoni v. Kim, 390 N.W.2d 218 (Mich. Ct. App. 1986); McIntosh v. Milano, 403 A.2d 500 (N.J.
1979); Wofford v. Eastern State Hosp., 795 P.2d 516 (Okla. 1990); Emerich v. Phila. Ctr. For Human Dev., Inc.,
720 A.2d 1032 (Pa. 1998); Peck v. Counseling Serv., Inc., 499 A.2d 422 (Vt. 1985); Petersen v. State, 671 P.2d 230
(Wash. 1983).
22
Cal. Civ. Code § 43.92.
23
See National Conference of State Legislatures, Mental Health Professionals’ Duty to Warn, available at
www.ncsl.org/issues-research/health/mental-health-professionals-duty-to-warn.aspx (last accessed August 17,
2013).
24
The 29 states with mandatory reporting laws: Alabama, Arizona (duties vary for different professions), California,
Colorado, Delaware (duties vary for different professions), Idaho, Illinois (duties vary for different professions),
Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, New
Hampshire, New Jersey, New York, Ohio, Pennsylvania, Tennessee, Utah, Vermont, Virginia, Washington, and
Wisconsin.
25
The 16 states and the District of Columbia with permissive reporting laws: Alaska, Arkansas, Connecticut,
District of Columbia, Florida, Hawaii, Kansas, Mississippi, New Mexico, Oklahoma, Oregon, Rhode Island, South
Carolina, South Dakota, Texas, West Virginia, and Wyoming.
26
The four states with no duty to report: Maine, Nevada, North Carolina, and North Dakota.
27
The Georgia Code of Ethics of the State Board of Examiners of Psychologists, ch. 510-4-.02 § 4.05 allows
discretionary disclosure of confidential information to protect the client, psychologist, or others from harm. Despite
Georgia’s lack of statutory authority, it is important to note that Georgia case law has established that “where the
course of treatment of a mental patient involves an exercise of ‘control’ over him by a physician who knows or
should know that the patient is likely to cause bodily harm to others, an independent duty arises from that
relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to
others at the hands of the patient.” Bradley Ctr., Inc. v. Wessner, 287 S.E.2d 716, 721 (Ga. Ct. App. 1982).
28
Arizona, Delaware, and Illinois.
29
For example, the Delaware law provides that mental health providers must warn against threats to clearly
identified victims as well as clearly identified property. By contrast, Maryland law provides that mental health
9
providers only must warn against threats against specific victims or groups, but may do so regardless of whether the
patient’s intent to harm was expressed in speech, conduct, or writing.
30
The states granting immunity if the mental health professional complies with certain statutory requirements are
Alabama, Arizona, California, Colorado, Delaware, Louisiana, Maryland, Michigan, Minnesota, Nebraska, New
Hampshire, Tennessee, Virginia, and Washington.
31
Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 344 (Cal. 1976).
32
American Medical Association, Code of Medical Ethics § 5.05 (2010).
33
American Psychological Association, Ethical Principles of Psychologists and Code of Conduct § 4.05(b)(3)
(2010).
34
American Psychiatric Association, Principles of Medical Ethics § 4, point 8 (2013).
35
Pub. L. No. 104-191, 110 Stat. 1936 (codified in scattered sections of 18, 26, 29, 42 U.S.C. (2012).
36
45 C.F.R. Parts 160, 164 (2013).
37
45 C.F.R. § 160.102 (2013).
38
45 C.F.R. § 164.512 (2013).
39
45 C.F.R. § 164.512(j) (2013).
40
Alaska, Arizona, Colorado, Connecticut, Delaware, District of Columbia, Florida, Idaho, Indiana, Maryland, New
Jersey, New York, Ohio, Oklahoma, Oregon, Texas, Virginia, West Virginia, and Wyoming.
41
20 U.S.C. § 1232g (2008).
42
34 C.F.R. Part 99 (2012).
43
See, e.g., Office of the Governor of Virginia, Virginia Tech Review Panel: Mass Shootings at Virginia Tech,
available at http://www.governor.virginia.gov/TempContent/techPanelReport.cfm (last accessed August 17, 2013).
44
34 C.F.R. § 99.36(a) (2013).
10