4.1 The Tarasoff Mandate & California Civil Code 43.92
Key Takeaways
- California Civil Code Section 43.92 codifies and limits the therapist's statutory duty to protect, requiring a communication of a serious threat of physical violence against a reasonably identifiable victim.
- Under Ewing v. Goldstein (2004), a threat communicated to a therapist by a patient's immediate family member for the purpose of advancing therapy triggers the statutory duty to protect just as if communicated directly by the patient.
- To discharge the duty to protect and claim statutory immunity under Civil Code 43.92(b), the psychotherapist must make reasonable efforts to notify both the potential victim(s) and a local law enforcement agency.
- A threat to property alone does not trigger the statutory Tarasoff/Civil Code 43.92 mandatory duty, though Evidence Code 1024 permits discretionary breach of confidentiality if the patient poses a dangerous threat.
- Notification to law enforcement under Civil Code 43.92 requires providing necessary information to protect the victim while avoiding unnecessary disclosure of confidential clinical notes.
4.1 The Tarasoff Mandate & California Civil Code 43.92
Historical Evolution: From Duty to Warn to Statutory Duty to Protect
The landmark California Supreme Court ruling in Tarasoff v. Regents of the University of California (1976) fundamentally altered mental health law by establishing that confidentiality ends where public peril begins. The original Tarasoff I decision (1974) established a broad "duty to warn" intended victims. However, upon rehearing, Tarasoff II (1976) expanded this standard to a broader "duty to protect", holding that when a psychotherapist determines, or pursuant to the standards of the profession should determine, that a patient presents a serious danger of violence to another, the therapist incurs an obligation to use reasonable care to protect the intended victim against such danger.
Because the broad common law duty created substantial ambiguity and exposed clinicians to unpredictable liability, the California Legislature enacted California Civil Code Section 43.92 in 1985 (subsequently amended in 2006 and 2013). Civil Code 43.92 narrow-tailored therapist liability by codifying a statutory threshold for when the duty arises and establishing a clear statutory "safe harbor" for discharging that duty.
Three Mandatory Elements Triggering Civil Code 43.92
Under California Civil Code Section 43.92(a), no monetary liability and no cause of action shall arise against a licensed psychotherapist for failing to protect from a patient's threatened violent behavior unless all three of the following statutory elements are present:
- Communication by Patient or Immediate Family Member: The threat is communicated directly to the psychotherapist by the patient, or by an immediate family member of the patient for the purpose of advancing the patient's therapy (Ewing v. Goldstein, 2004).
- Serious Threat of Physical Violence: The communication conveys a credible, serious threat of severe physical harm or violence (not mere expression of anger, vague hostility, or property damage).
- Reasonably Identifiable Victim: The threat targets a specific, named individual or a clearly identifiable target or group (e.g., "my ex-wife Sarah", "my roommate at 123 Main St").
| Statutory Element | Legal Threshold | Clinical Scenario Example | Duty Status |
|---|---|---|---|
| Patient Threat to Named Person | Direct communication of physical violence against identifiable victim | "I am going to shoot my former boss, Mark Davis, tonight." | Duty Triggered |
| Family Member Communication | Immediate family member discloses patient's intent to kill named victim (Ewing) | Client's mother calls LMFT stating, "My son told me he bought a gun to kill his ex-girlfriend Jane." | Duty Triggered |
| Vague / General Threat | Severe threat but no identifiable or reasonably traceable victim | "I am so angry I could kill everyone in this city." | Duty NOT Triggered (Clinical assessment required; optional EC 1024 breach) |
| Threat to Property Only | Threat to damage or destroy physical objects | "I am going to burn down my neighbor's empty shed tonight." | Duty NOT Triggered (Permissive EC 1024 breach allowed if dangerous) |
| Third-Party / Non-Family Tip | Threat reported by coworker, neighbor, or friend | Client's boss calls stating client threatened a coworker. | Duty NOT Triggered under statutory CC 43.92 (Ewing limited to family) |
The Ewing Expansion (Ewing v. Goldstein & Ewing v. Northridge Hospital)
In 2004, the California Court of Appeal decided Ewing v. Goldstein (39 Cal. Rptr. 3d 813), significantly expanding the scope of Civil Code 43.92. In Ewing, a patient told his father he intended to kill his ex-girlfriend's new partner. The father communicated this threat to the patient's therapist. The therapist did not notify the victim or police, relying on the literal statutory phrasing that required a communication "by the patient." The patient subsequently murdered the victim.
The court held that a communication from a patient's immediate family member (such as a parent, spouse, child, or sibling) made to the therapist for the purpose of advancing the patient's mental health treatment is considered a communication from the patient under Civil Code 43.92. Following Ewing, the California Legislature formally amended Civil Code Section 43.92 to incorporate family-communicated threats into the statute.
Statutory Safe Harbor: Discharging the Duty to Protect
To maintain statutory immunity from monetary liability under Civil Code 43.92(b), the psychotherapist must make reasonable efforts to communicate the threat to:
- The potential victim or victims; AND
- A local law enforcement agency in the city or county where the victim or patient resides.
CRITICAL EXAM TRAP: Historically, hospitalizing a client voluntarily or involuntarily under WIC 5150 was considered one way to fulfill the common-law duty to protect. However, under California Civil Code Section 43.92(b), to guarantee statutory immunity from monetary liability, the clinician MUST notify both the victim AND local law enforcement. Hospitalization alone does NOT provide statutory safe harbor immunity under CC 43.92!
Evidence Code 1024 vs. Civil Code 43.92
It is critical for California LMFT candidates to distinguish between the mandatory duty to breach confidentiality (Civil Code 43.92) and the permissive legal exception to psychotherapist-patient privilege (California Evidence Code Section 1024).
- Evidence Code § 1024 (Dangerous Patient Exception): States there is no psychotherapist-patient privilege if the therapist has reasonable cause to believe the patient is in such a mental or emotional condition as to be dangerous to self or the person or property of another, and that disclosure is necessary to prevent the threatened danger. EC 1024 provides the legal permission to break confidentiality without violating privacy laws.
- Civil Code § 43.92 (Tarasoff Duty to Protect): Establishes a legal obligation (mandate) to break confidentiality and notify victim/police when specific statutory criteria are met.
Clinical Protocol & Documentation Standards
When a Tarasoff/Ewing situation arises, the LMFT must execute a swift, documented protocol:
- Assess Immediate Imminence & Specificity: Question the client directly regarding intent, plan, means, access to weapons, and target identification.
- Notify Law Enforcement Immediately: Contact local police or sheriff department. Record officer name, badge number, report/incident number, and exact time of call.
- Notify Intended Victim(s): Attempt direct contact via telephone. If unreachable, document all contact attempts and notify police of difficulty reaching the victim.
- Document Clinical Rationale: Record verbatim quotes of the threat, clinical reasoning, supervisor/consultant names, timeline of notifications, and safety measures implemented.
An LMFT receives a phone call from a client's sister. The sister states that during breakfast, the client announced a clear plan to shoot his former business partner, John Miller, later that evening. The sister begs the LMFT to help. According to California law and relevant case precedent, how should the LMFT proceed?
An LMFT's client expresses intense anger during a session and states, "I'm going to take a sledgehammer and destroy my ex-boss's luxury car parked outside his house tonight." The client refuses to contract for safety regarding property damage. Which statement correctly describes the LMFT's legal obligation under California law?
A psychotherapist determines that a client presents a serious threat of physical violence against an identifiable ex-spouse. To achieve statutory immunity from monetary liability under California Civil Code Section 43.92(b), what specific action must the psychotherapist take?