Thursday, November 26, 2009

Current State of Tarasoff Decision

Here is a database of state rules on the duty to warn.

This decision mandated the reporting of a person-specific threat by a mental patient to the target. It was more lawyer intimidation and take over of clinical care. I doubt a single life has been saved by this decision. The alternative is to rely on clinical judgment. There are 2000 people murdered by paranoid schizophrenics each year. The doctor should have the discretion to call the target, the police, the family of the patient, or to file commitment papers to maintain safety. All these remedies that could prevent harm have been closed off by the lawyer on the bench. The Tarasoff was irrational, then and now. It did generate multiple lawsuits and the plunder of clinical care, and that was its sole real purpose. From Daniel W. Shuman, JD. This article contains statutory reporting requirements by state.

"The case in brief

The plaintiffs in the lawsuit (Tarasoff v Regents of the University of California, 551 P2d 334 [Cal 1976]), the victim’s parents, alleged that a patient (Poddar) communicated his intention to kill their daughter to his therapist, but that the therapist neither warned her nor took other appropriate actions and sought damages for the resulting harm. The de-fendants moved to dismiss.

There are no new facts to add to the recitations found in hundreds of books and articles on Tarasoff, and nobody wants to hear them again. The trial transcript might have provided some new perspective, but there was no trial or evidentiary hearing. According to the Supreme Court of California, there had been a “Complaint” containing the claimants’ version of events. But instead of an “Answer,” which might have admitted or denied the factual allegations of the complaint, the defendants filed a “Motion to Dismiss,” which, according to convention, accepted the plaintiffs’ factual allegations for purposes of the motion only.

The court granted the motion to dismiss, and the plaintiffs took this appeal. No trial. No evidentiary hearings. And no evidence. The report of Poddar’s appeal of his second-degree murder conviction centers on his mental state and consequential culpability (People v Poddar, 103 Cal Rptr 84 [Cal Ct App 1972]). Although there are inherent limits in every case on accurately reconstructing the past, this case was resolved before an attempt to do so. The facts, therefore, that have been passed on from one article to the next may be right or may be urban legend. We do not know.

The legal ramifications

Why does it matter what the sources of the reported facts were anyway? Why should we care whether some came from a journalist, some from a paralegal who worked for the defendants, and some from the authors of the Tarasoff articles’ independent investigation?

First, we have an imperfect but known reliability filter called the “Rules of Evidence” to screen proof of facts in trial. We cannot endorse extra-judicial fact-finding without knowledge of the process and its reliability. Second, cognizant of the limitations of this fact-finding process, the judicial system is explicit about the standard of persuasion, which expresses the level of confidence required on an issue—probable cause, preponderance of the evidence, clear and convincing or beyond a reasonable doubt. Third, the legitimacy of the fact finder in our judicial system—jury or judge—is grounded in constitutional law and public scrutiny.

By what process were these “facts” determined? To what degree of certainty? By what authority? What are the implications for the scholarship perched on this precarious foundation? Before going any further, this is a conversation in which those authors who discovered or applied those facts should be included.

The opinion of the California high court recites the procedural history of the case.10 A civil claim for damages was brought in a California court in Alameda County, against a California university health center psychologist, among others. It alleged that in 1969, a student-patient of the psychologist murdered another student. In response, the defendants filed a motion to dismiss."

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