No Duty to Warn in California: Now Unambiguously Solely a Duty to Protect

Abstract

In 2013, legislation went into effect clarifying that the Tarasoff duty in California is now unambiguously solely a duty to protect. Warning the potential victim and the police is not a requirement, but a clinician can obtain immunity from liability by using this safe harbor. In situations in which a therapist believes warning might exacerbate the patient's risk, however, alternative protective actions can satisfy the duty to protect. For a clinician to be found liable, those alternative actions would have to be proven negligent. This flexibility can sometimes be crucial in protecting potential victims and thereby, indirectly, patients from the consequences of dangerous action. Explaining the reasoning for the action chosen should obviate any significant liability risk of doing the right thing, even without immunity. Legislation was enacted in 2007 as an attempt to clarify the requirement, but the revised immunity statute at the time retained the phrase duty to warn and protect, which perpetuated the now-eliminated confusion. Correctly understanding the California law is important to avoid having the restored flexibility eroded again by belief in a nonexistent duty to warn. The Tarasoff duty originated in California, but since many other states later established similar duties, the developments in California may have national implications.