Dissenting Tarasoff In the tragic case of Tarasoff versus the Regents of the University of California the majority ruled towards making the psychiatrist liable for not detaining the patient Poddar who had expressed intentions to harm Tatiana Tarasoff during counseling. The majority ruling makes the therapist liable for the death of Tarasoff for he knew that her life was in danger, thus creating a new “duty to warn” for all therapists. The dissenting argument expresses that due to the duty to warn clause violence will increase, because patients will no longer feel comfortable seeking treatment and revealing their issues to the therapist. In order to analyze the dissenting opinion the following questions must be answered: are therapists able and equipped to determine whether a patient is dangerous? Are therapists potentially sacrificing effective treatment by violating confidentiality under duty to warn? Are therapists better off without the duty to warn clause? During the next paragraphs the duty to warn clause will be shown to be a burden not only on both patients and therapists, but on society as a whole. In examining the case of Tarasoff, Judge Mosk presses that psychiatric predictions of violence are inherently unreliable. Psychiatrists already experience a lot of difficulty accurately diagnosing mental illness, and with this uncertainty the difficulty of determining whether a patient is a danger to society becomes even harder. The majority opinion assigned a responsibility for the therapist to have a duty to warn and also a duty to protect. This duty intends to make therapists breach confidentiality with a client in order to protect an identifiable third party. The therapist in essence must have reasonable care when faced with a patient that expresses violent intents towards others, especially an identifiable target. For therapists to show reasonable care means that they are not only caring for the patient’s well-being but now for a third party’s well-being too. Mosk goes on to defend the therapist’s position by recognizing just as sane people may be dangerous, patients diagnosed may or may not be dangerous even if they express feelings that might lead to violence. Mosk also states that therapists are not uniquely qualified to predict dangerous behavior, so holding them responsible to determine unpredictable factors might interfere with their therapeutic process. This leads to the idea that the increase in violence might not only come from failing to accurately treat a possibly violent patient, but also misdiagnosing non-violent patients who are in essence expressing their anger in an unhealthy way. I as well concur with the majority opinion that patients who have threatened a third party should be held for evaluation, but I disagree when the judges burden therapists with the duty to warn after identifying threatening patients when it is already difficult to diagnose accurately. Judge Clark, another dissenting judge, argues that both legal and medical authorities have agreed that confidentiality is essential to effectively treat the mentally ill, and that exposing patients’ will greatly impair treatment. The net increase in violence will arise when overwhelming policy will place patients under inappropriate commitment for public safety. This will go contrary to the interests of society because it will ultimately impair proper treatment. The original provision had no provision to press the therapist to warn anyone of the patient’s threat; this did not mean that the patient did not go untreated. The patient intending to hurt others would be put under forced detention for 72 hours to be evaluated. The evaluation then would effectively determine whether the patient needed further treatment or the patient just needed these 72 hours to in essence cool off. This provision sounds reasonable enough, the problem that in Tarasoff’s case Poddar was not put under review since he allegedly seemed sane and promised to stay away from her. Often times when people are in situations that cause them frustration, they resort to a darker side to be able to cope with the situation. This situation might just require some guidance and time to allow the patient to come to terms with his feelings. To hold the therapist accountable to report patient’s records to law enforcement agencies and other third parties seems a bit extreme. Poddar, who was not familiar with American customs, might have been benefitted from these 72 hours of review. This failure to enforce an already placed law might have been the reason why Tarasoff died. Dr. Moore sent a letter to the campus police briefly describing the state of the patient in purpose to obtaining the 72 hour confinement period, but under police discretion the patient was prematurely released. The therapist should disclose limited information in order to get the necessary order for the patient to be confined, but not fully disclose all the information to other parties for this might tarnish the faith of people on therapy. In essence if those who seek treatment don’t feel substantial assurance of confidentiality, those who need treatment might be discouraged to the idea of seeking professional help. Clark even goes on to state that “it remains an unfortunate fact that in our society that people seeking psychiatric guidance tend to become stigmatized. “ In principle if a patient feels vulnerable to scrutiny, what makes the court think that with the duty to warn clause treatment will become more widely used. People will be reluctant to aid and thus a possible net increase in violence will occur. The judge concludes by wisely stating that “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”. Another factor that will inhibit the effectiveness of treatment will be the vulnerability that therapists feel under the duty to warn clause. Not only will they feel the pressure to predict whether patients expressing feelings towards violence will actually commit any acts, but also fear the consequences that will arise if they act or fail to act upon this prediction. If they fail to correctly assess the patient they will either lose a patient by betrayal of trust when breaking confidentiality and unjustly institutionalizing them, or be under legal penalty for failing to adhere to the duty to warn clause. In hindsight one might clearly draw a line saying that the therapist should have had Poddar put under supervision and also warned Tarasoff, but obviously therapists don’t have the luxury of a crystal ball showing them the future. According to Clark the duty to warn clause unfortunately forces the therapist under pressure to make decisions between “a rock and a hard place”. The judge shares that obviously the therapist will chose to protect himself by choosing to protect the public interest. This consequently allows room for an increase in violence.
Clark concludes that,” 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.” As in any other type of relationship trust is essential, in principle patients’ trust is essential for effective treatment and prevention of acts of violence as explored in this tragic case, and the duty to warn clause adds negative pressure that tarnishes effective patient-therapist relations.