Confidentiality and the 'Dangerous' Patient: Implications of Tarasoff for Psychiatrists and Lawyers

Abstract

This essay examines the role conflict of the professional whose patient or client may be dangerous to others, and the ways in which professional standards of ethics and practice, incorporated by judicial ruling, contribute to that role conflict. The paper's focus is on the plight of the psychiatrist: but it also addresses the strain felt by the lawyer who either represents such a client or is asked to advise a psychiatrist who has such a patient. It suggests that health-care providers are not altogether justified in assigning sole responsibility for some of their professional difficulties to the law's incursions on clinical autonomy. Contrary to the assertions of Chancellor Wallis, the criteria by which the law evaluates the conduct of medical professionals continue almost exclusively to be defined by the self-set standards of customary and prudent practice, and that state of affairs is unlikely to change. For so long as it obtains, lawyers will be tempted to respond to complaints about unjust or unworkable standards with Physician, heal thyself. Of course, the argument that clinicians can control their exposure to legal liability through concerted professional action is not meant to imply that their moral dilemmas can be as easily resolved. For most practitioners those questions undoubtedly are far more troubling.

Keywords: confidential communications, mental health laws