Another Mental Health Confidentiality Case May Join the Tarasoff Lineage

By S. Van McCrary, Health Law & Policy Institute

A major case may be developing in the area of confidentiality between mental health professionals and patients. The New York Times has reported that a New York psychiatrist has been sued in federal court in Connecticut by the parents of a boy who was sexually molested by one of the psychiatrist's patients. The essence of the suit is a claim that the psychiatrist should have done more to prevent the sexual abuse. This dispute may reinvigorate the two decades-long controversy that became prominent with Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976).

The defendant-psychiatrist in the reported case, Dr. Douglas H. Ingram, was the psychoanalist for the accused abuser, Dr. Joseph DeMasi, a child psychiatrist and third-year resident physician at New York Medical College. During the course of analysis, Dr. DeMasi revealed to Dr. Ingram his strong interests in sexual relationships with children, and Dr. Ingram did nothing to remove him from his rotations as a resident. According to the Times report, four months later Dr. DeMasi molested a 10-year old boy at Danbury Hospital in Connecticut. The boy and his family subsequently filed a lawsuit which alleges that Dr. Ingram should have done more to prevent the incident from occurring.

The precise boundaries and limits of confidentiality in psychiatric contexts have long been disputed by therapists and medical ethicists alike, and are ambiguous in the law. In the Tarasoff decision the Supreme Court of California held that when a psychotherapist determines, or in keeping with professional standards should determine, that his or her patient presents a serious danger to another person the therapist incurs a duty to use reasonable care to protect the intended victim against the threat. Despite the high visibility of the Tarasoff decision, the rule it established in California has been rejected or severely limited in many other jurisdictions and remains the topic of substantial controversy. The central issues are first, whether the perpetrator posed a clear threat to others, and second, was there a clear victim or class of victims to protect?

In Fraser v. United States, 674 A.2d 811 (Conn. 1996), the Connecticut Supreme Court addressed whether a psychotherapist has a duty to prevent an outpatient, who was not known to be dangerous, from inflicting bodily harm on a victim who was neither readily identifiable nor within a foreseeable class of victims. In Fraser, a paranoid schizophrenic outpatient attacked and killed a long-time friend after displaying no previous hostility or threatening behavior. The Fraser court held that there was not such a duty:

we are persuaded that, as a matter of law in the circumstances of this case, the medical center psychotherapists had no duty to exercise control over Doe to prevent him from assaulting Fraser. We reach this conclusion for four reasons: (1) our decisions defining negligence do not impose a duty to those who are not identifiable victims; (2) in related areas of our common law, we have concluded that there is no duty except to identifiable persons; (3) policy reasons inherent in the psychotherapeutic relationship and in the due process rights of mental patients counsel against imposing expansive duties to exercise control over such patients; and (4) courts in other jurisdictions have overwhelmingly declined to extend any duty to control to encompass harm to unidentifiable third persons. (674 A.2d 811, at 814-815).  Despite the Fraser court's reliance on the absence of an identifiable victim, the court left room for possible liability for harm to victims who are members of a class of identifiable victims. In so doing, the court deemed it appropriate to balance the interests of those injured by psychiatric outpatients against the interests of the mental health profession in honoring the confidentiality of the patient-therapist relationship. There was also a vigorous dissenting opinion in Fraser, which argued that the evidence presented was sufficient to demonstrate a level of cognizance of potential danger on the part of the psychiatrist and thus require a warning or protective activity.

Some legal authority supports a finding of liability against Dr. Ingram based on the foreseeability of harm to the class of potential victims, i.e., the class of present and future patients of Dr. DeMasi. If the plaintiff is successful in his suit, independent empirical research studying psychotherapists' reactions to the Ingram case could be extremely useful in monitoring the impact of the case on mental health practitioners. In any event, the controversy is not likely to fade away in the near future.