Confidentiality and the Tarasoff Duty: When Therapists Must Warn

Understand the landmark Tarasoff case that created the duty to warn. Learn when confidentiality must yield to public safety, how HIPAA permits disclosure, and the expanding applications to genetics and gun violence.

Confidentiality and the Tarasoff Duty: When Therapists Must Warn

Confidentiality is the oldest rule in medicine. The Hippocratic Oath promises: "What I may see or hear in the course of treatment... I will keep to myself." Patients must trust their providers with their secrets—their addictions, their affairs, their fears—or they will not seek help. Therapy, in particular, relies entirely on this safe space.

But is this duty absolute? What if a patient tells you they are going to kill someone? Does the duty to the patient outweigh the duty to the public?

This question was answered by the Tarasoff case, which established the "Duty to Warn" and the "Duty to Protect"—and fundamentally changed the practice of mental health care.

The Facts

In 1969, Prosenjit Poddar was a graduate student at UC Berkeley. He became obsessed with a young woman named Tatiana Tarasoff. She rejected him, and he fell into a deep depression. He sought treatment at the university counseling center.

During a session, Poddar explicitly told his psychologist, Dr. Moore, that he intended to kill Tatiana when she returned from her summer vacation in Brazil.

Dr. Moore took this seriously. He believed Poddar was dangerous. He notified the campus police and requested that Poddar be involuntarily committed.

The Failure

The campus police detained Poddar. However, Poddar was intelligent and calm. He convinced the police he was just angry and not a real threat. They released him with a warning to stay away from Tatiana.

Poddar, furious that his therapist had "snitched," stopped going to therapy.

Two months later, Tatiana returned. Poddar went to her house, shot her with a pellet gun, and then stabbed her to death with a kitchen knife.

Tatiana's parents sued the university. They argued that while the police knew, and the doctor knew, Tatiana did not know. If she had been warned, she could have protected herself.

The Tarasoff Ruling

The case reached the California Supreme Court. In 1976, they issued a landmark ruling in favor of the parents. Justice Tobriner wrote the famous line: "The protective privilege ends where the public peril begins."

The court established that when a therapist determines a patient poses a serious danger of violence to others, they bear a duty to exercise reasonable care to protect the intended victim.

This originally meant a "Duty to Warn" (calling the victim directly). Later iterations expanded this to a "Duty to Protect" (which might include hospitalization, calling police, or warning—whatever is reasonably necessary to prevent harm).

The court decided that physical safety is more important than the sanctity of the therapy room.

The Psychiatric Backlash

The mental health community panicked. The American Psychiatric Association filed amicus briefs arguing that this rule would destroy therapy.

Their arguments were substantial:

Chilling effect. If patients know doctors will call the police, they will stop talking about their violent urges. If they stop talking, they cannot be treated, and they become more dangerous, not less.

Unreliable prediction. Predicting violence is incredibly difficult. Studies show that mental health professionals are wrong more often than they are right when predicting dangerousness. Doctors would over-report to avoid liability, potentially leading to unnecessary involuntary commitments.

Defensive medicine. Therapists would practice defensively, prioritizing legal protection over therapeutic benefit.

The court acknowledged these risks but held firm: the risk to the public was too high to ignore. Safety trumped privacy.

The Three Criteria

For a clinician, knowing when to break confidentiality is challenging. Generally, three criteria must be met to trigger a Tarasoff duty:

1. Specific Threat

There must be a specific threat of serious bodily harm. A vague statement like "I hate the world" or "I feel like exploding" does not trigger the duty. It must be specific: "I am going to kill John Smith."

2. Identifiable Victim

There must be an identifiable victim (or identifiable group). A threat against "everyone" is too diffuse. A threat against a specific named person, or a clearly identifiable group, triggers the duty.

3. Ability to Act

The patient must have the ability to carry out the threat. Someone expressing violent fantasies while in locked psychiatric confinement presents a different risk than someone with access to weapons and freedom of movement.

If the threat is vague, the duty is to treat the patient, not to call the police.

Expanding Applications: Infectious Disease

Does Tarasoff apply to infectious diseases? This became a significant question with HIV/AIDS.

If an HIV-positive patient tells his doctor he is having unprotected sex with his wife but has not told her his status, does the doctor have a duty to warn the wife? She is an "identifiable victim" in "imminent peril."

Ethically, the Tarasoff logic applies. Legally, it varies by jurisdiction. Most states have "Partner Notification" laws that allow (and sometimes require) the health department to notify partners without revealing the source patient's name.

This strikes a balance—protecting the third party from harm while trying to maintain some level of privacy for the patient. The notification comes from public health authorities, not the patient's personal physician.

The Genetic Frontier

The newest frontier of Tarasoff doctrine is genetics. Courts are beginning to grapple with "Genetic Tarasoff."

Consider this scenario: A man is diagnosed with a hereditary form of colon cancer. His estranged daughter, whom he has not spoken to in years, does not know her father's diagnosis. If she had known, she would have gotten screened early and avoided her own cancer.

Does the father's doctor have a duty to warn the daughter?

Some courts have held that the genetic link makes children "patients by proxy"—that the information belongs partly to them because it directly affects their health. Others argue that the duty of confidentiality to the father prevents the doctor from contacting his estranged family.

As genomic medicine advances, the definition of who is "at risk" expands from a single identifiable victim to an entire family tree. The boundaries of the duty to warn become increasingly uncertain.

Gun Violence and Red Flag Laws

Today, we see Tarasoff principles codified in "Red Flag Laws" or Extreme Risk Protection Orders (ERPOs). These laws allow doctors, family members, or police to petition a court to temporarily remove firearms from a person who presents a danger to themselves or others.

This is a direct application of the Duty to Protect. It prioritizes public safety over Second Amendment rights and medical privacy. It puts the physician in the role of gatekeeper for public violence.

Red Flag Laws vary significantly by state. Some require clinical involvement; others rely primarily on family or law enforcement petitions. But all reflect the Tarasoff principle that some dangers are too grave to keep secret.

HIPAA and the Safety Exception

A common misconception is that HIPAA prevents doctors from warning potential victims. This is false.

The HIPAA Privacy Rule has a specific exception for "Serious and Imminent Threats." Healthcare providers are permitted to disclose Protected Health Information (PHI) to law enforcement or potential victims if they believe it is necessary to prevent harm.

We must not let fear of a privacy fine stop us from saving a life. The law is designed to include safety valves. HIPAA is not a suicide pact.

The Burden on Clinicians

Tarasoff places an enormous burden on mental health professionals. They must simultaneously:

Clinicians who fail to warn may be sued if violence occurs. Clinicians who warn may be sued for breach of confidentiality if no violence occurs. The middle ground is narrow and fraught.

Navigating the Duty in Practice

Several practical principles guide clinicians:

Document thoroughly. When patients make concerning statements, document what was said, your assessment of dangerousness, and your reasoning for the action taken (or not taken).

Consult colleagues. Difficult Tarasoff decisions benefit from consultation. A documented consultation showing reasonable clinical judgment provides legal protection.

Know your jurisdiction. Tarasoff has been adopted differently across states. Some mandate warning; others permit it; some reject the duty entirely. Know your local law.

Warn thoughtfully. If you must warn, do so in a way that minimizes harm to the therapeutic relationship when possible. Sometimes warning can be framed as protective of the patient as well as the victim.

Continue treatment. Breaking confidentiality does not necessarily end the therapeutic relationship. Many patients continue treatment after a Tarasoff disclosure.

Conclusion

Confidentiality is a sacred trust, but it is not absolute. The Tarasoff doctrine reminds us that the physician operates within society, not outside of it. When a patient becomes a missile aimed at the public, the doctor has a duty to sound the alarm.

The balance between privacy and safety will never be perfectly drawn. Each case involves judgment calls made under uncertainty. But the fundamental principle is clear: "The protective privilege ends where the public peril begins."

For clinicians, ethicists, and policy makers, Tarasoff represents the recognition that healthcare providers have obligations not only to their patients but to the broader community. Sometimes those obligations conflict. Navigating that conflict is one of the most challenging aspects of clinical ethics.

Deepen Your Confidentiality Ethics Knowledge

This article is part of our comprehensive Free Bioethics and Healthcare Policy Course. Watch the full video lectures to explore confidentiality, the duty to warn, and expanding applications in detail.

Additional Resources:

Navigate confidentiality dilemmas. Our Research Assistant provides guidance on Tarasoff obligations, HIPAA exceptions, and balancing patient privacy with public safety.