In order to understand how the Tarasoff verdict was reached and why it is an example of judicial activism, it is first necessary to be aware of the facts that led to the initiation of the case. In 1969, a man named Prosenjit Poddar began seeing a psychologist named Lawrence Moore who worked for the Cowell Memorial Hospital at UC Berkeley (Tobriner 1976, 2). Poddar was infatuated with a fellow student named Tatiana Tarasoff, but this sentiment was not mutual. His feelings of simultaneous affection and resentment towards Tarasoff continued to grow to the point that they turned angry and violent. He informed Dr. Moore that he intended to kill a girl whom he neglected to name (but was easily identifiable as Tarasoff) and after conferring with colleagues, Moore contacted the police to recommend that his patient “be committed under a 72-hour emergency psychiatric detention” (Tobriner 1976, 2). The police spoke briefly with Poddar, but let him go with his assurance that he would stay away from Tatiana (Tobriner 1976, 2). Shortly thereafter, Moore’s supervisor – Dr. Harvey Powelson – ordered that no further effort be made to detain Poddar and that any records of Poddar’s treatment be disposed of (Tobriner 1976, 2). Upon finding out that Moore had attempted to have him committed, Poddar terminated his psychological treatment. In the subsequent months he befriended Tatiana’s brother and took up residence with him a few blocks from her home (Tobriner 1976, 2). None of the therapists involved warned Tatiana or her family of the danger that she could be in, and on October 27th, 1969, Poddar followed through with his threat to kill her (Tobriner 1976, 2).
Following the murder, Tarasoff’s parents brought suit against Drs. Powelson and Moore for their negligence in failing to warn Tatiana and confine Poddar. The Superior Court dismissed their case: a dismissal that the California Court of Appeals later affirmed (Tobriner 1976, 3). Upon further appeal the Supreme Court of California heard the case in 1974. Their ruling reversed dismissal on the count of failure to warn but sustained the verdict that Poddar’s therapists had no duty to confine him. They stated that “Government Code section 856 bars imposition of liability upon defendant therapists for their determination to refrain from detaining Poddar” and thus the defendants were immune to such claims of negligence (Tobriner 1974, 6).
In finding the defendants guilty of a failure to warn Tatiana of the peril she could be in, the court ruled that “A doctor or a psychotherapist treating a mentally ill patient, just as a doctor treating physical illness, bears a duty to use reasonable care to give threatened persons such warnings as are essential to avert foreseeable danger arising from his patient’s condition or treatment” (Tobriner 1974, 3). This finding was predicated upon the fact that, unlike failure to confine, “failure to warn was not immunized as a discretionary omission” (Tobriner 1974, 1). Despite the fact that as a general rule of practice one person has no duty to control the conduct of another, there are two situations that constitute exceptions to this rule. There is a duty to use reasonable care in controlling another person’s conduct if “the defendant stands in some ‘special relationship’ to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct” or if “the defendant has engaged, or undertaken to engage, in affirmative action to control the anticipated dangerous conduct” (Tobriner 1974, 8). The court found that the defendants’ doctor-client relationship with Poddar and the fact that Moore had attempted to have him committed – thus undertaking to engage in affirmative action to control his conduct – qualified the case for both of these exceptions to exemption from duty.
Following their 1974 ruling on the Tarasoff case, the court was inundated with messages from interested parties who disapproved of their “radical” imposition of a legal duty to warn, and in 1976, they took the “quite unusual step of rehearing the case” (Leonard, 4). After reviewing the details of the Tarasoff case once again, the court concluded that “once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger” (Tobriner 1976, 9).
The California Supreme Court case of Vitaly Tarasoff et al v. The Regents of the University of California et al is a landmark case within the field of mental health. The ruling in this case established professional duties that have permanently altered the way mental health professionals think and behave, and in doing so spurred a great deal of controversy. In fact, it incurred so much criticism that the court made the rare decision to rehear the case two years later. Rather than simply reaffirming or reversing their previous holding, the court broadened it in a way that was less specific and went beyond the facts of the original case. In doing so, they employed the use of judicial activism: a practice widely criticized by legal scholars as being an abuse of authority. By expanding their verdict beyond the scope of the specific case at hand, the court unnecessarily increased the legal burden on therapists and transgressed against the sanctity of the American tripartite system of government by going beyond the powers specifically delegated to them without sufficient justification.
Judicial activism, as stated by Keenan D. Kmiec in his California Law Review article “The Origin and Current Meanings of ‘Judicial Activism’”, is a practice both scorned and praised by those in the legal community that refers to judges who “legislate from the bench” (Kmiec, 1, 14). This means that rather than applying the dictates of the law to the specific facts of a case, judges use their ruling as an excuse to create new laws, rule in favor of a morally blameless but legally guilty defendant, or establish a holding that is more far-reaching than the case requires (Kmiec, 2). While it is acceptable for Supreme Courts to create new regulations based on their interpretation of existing laws, they should not create rules of conduct that fall beyond the scope of the case. This practice is staunchly opposed by proponents of judicial restraint – the “principle that judges should adhere closely to legal precedent and largely disregard their personal views” – because it runs contrary to the fundamental checks and balances of the American system of government (Newhouse L3, 2). They point out that it is the job of the legislative branch to make laws and the judicial branch to interpret them in relation to alleged violations. Therefore, in their view, it is a clear abuse of power for a court to establish a law that does not stem directly from the facts of a case. By contrast, advocates of judicial activism feel that the Constitution is a “living, breathing document” that should be flexible and responsive to evolving societal standards (Newhouse L3, 7). They argue that the framers of the Constitution could not possibly have imagined all the situations that might occur in the future, and as such it is the job of the judiciary not just to interpret the laws, but to add to or modify them when ethically appropriate.
When the court issued their second verdict on Tarasoff in 1976, they altered the previous decision in a manner that clearly expanded the law beyond the specific facts of the case. In doing so, they may have been attempting to mitigate the anxiety of psychologists by using less definitive terms and thus reducing the burden to warn third parties by not explicitly outlining the methods that constitute reasonable care. But the practical effect of their verdict was to widen the scope of liability by failing to clearly define these methods, as well as to impose a duty based upon whether therapists should have predicted dangerousness rather than one that was initiated by their doing so. Instead of assuaging the anxiety of mental health practitioners, the court’s verdict used judicial activism to reassert a previously narrow holding in a broader, less case-appropriate fashion.
While the court’s initial ruling was in keeping with their responsibilities as a judicial body, it did establish a new duty for mental health practitioners—to exercise care towards “all persons who are forseeably endangered by [their client’s] conduct” (Tobriner 1976, 6). This meant that therapists had an obligation to a party with whom they had no therapeutic relationship, and that in fulfilling this obligation, they had to violate their patient’s confidentiality. Although this was an option in the past, it was left to the discretion of the individual therapist rather than being a legal duty. This establishment of an obligation to warn is, thus, highly problematic on a number of levels. First, it creates doubt in the mind of the client as to the guarantee of absolute confidentiality throughout the course of their treatment. This doubt is important because it can significantly hinder a psychologist’s ability to establish an effective therapeutic relationship with their client. As the American Psychiatric Association (APA) notes in a brief to the Tarasoff court, “psychotherapy plays an important role in neutralizing violence-prone persons” and this success is “founded upon full disclosure and cooperation of the patient…predicated upon the absolute assurance of confidentiality” (APA, 25). In other words, by establishing an affirmative duty for psychologists to breach confidentiality in certain situations, the court undermines the relationship of trust between patient and therapist that is necessary in order to most effectively diffuse the possibility of violence. The APA goes on to say that a relationship of trust and absolute confidentiality is especially important when dealing with violence-prone patients because they often “exhibit paranoid tendencies, but wish, by revealing the threats of violence, to have the psychotherapist help them protect themselves against the violent urges that they feel” (APA, 26). If the client cannot trust that their violent urges will remain confidential, they are less likely to express them and therefore potentially more likely to act on them.
In addition to establishing the problematic legal obligation to breach confidentiality in certain situations, the duty to warn forces psychologists into a difficult balancing act between their duty to their client and their duty to the client’s potential victim. As Justice Clark writes in his dissenting opinion on the case, “Establishing a duty to warn on the basis of general tort principles imposes a Draconian dilemma on therapists — either violate the act thereby incurring the attendant statutory penalties, or ignore the majority’s duty to warn thereby incurring potential civil liability” (Clark, 25). On the one hand, if a therapist neglects to warn a potentially endangered third party, he or she could be held legally responsible for failure to fulfill this duty. On the other hand, if he or she breaks confidentiality to warn a third party who the court later decides was not subject to foreseeable danger by the client, the therapist could be found guilty of unnecessarily breaching their duty of confidentiality to the patient. Legal liability aside, both scenarios can also increase the likelihood of danger to the third party. If they are not warned, and therefore do not take steps to safeguard themselves against violence, the chances of the client carrying out a successful assault will significantly increase. Conversely, if a client who was previously not dangerous finds out that a warning has been made, they are likely to become angry about this breach of trust and terminate therapy: an action that may detract from their mental stability or make them more likely to commit an act of violence. Given the already difficult nature of this situation and the delicate balance of needs that must be considered, adding an additional legal liability on psychologists simply confounds the process further and increases the likelihood that they will fail to give sufficient weight to other, more important aspects of their decision. However, simply replacing this duty with one that is less specific in nature does little to alleviate the problems at hand—while adding several new areas of concern.
By expanding the ruling in their second hearing of the case, the Court eased the specific duty to warn third parties by stating that therapists just had a “duty to exercise reasonable care to protect the foreseeable victim,” Judith Beren Leonard argues in her Law and Human Behavior article, “A Therapist’s Duty to Potential Victims: A Nonthreatening View of Tarasoff,” (Leonard, 4). But this lightened burden came at the cost of creating ambiguity about which responses satisfy the duty to exercise reasonable care. Rather than specifying particular options the court only said that reasonable care would “necessarily vary with the facts of each case” (Tobriner 1976, 9). Whereas after the first ruling therapists only had to worry about fulfilling their duties to their client and the identifiable third party, after the second they had the additional uncertainty of not knowing whether their chosen method of protecting the third party would satisfy the Court’s standard of reasonable care.
In addition to the vagueness about fulfilling the duty of reasonable care, the court added the clause, “once a therapist does in fact determine, or under applicable professional standards reasonably should have determined,” to the second verdict (Tobriner 1976, 9). This meant that not only did psychologists have a duty to warn a third party after they had concluded that their client was dangerous, but also could be found negligent based on their failure to make the determination of dangerousness. This additional liability is unreasonable as it has been well established that mental health professionals lack the ability to reliably assess dangerousness. In their brief to the court, the APA cited the findings of a recent task force on clinical aspects of violent individuals, which noted that “Neither psychiatrists nor anyone else have reliably demonstrated an ability to predict future violence or ‘dangerousness.’ Neither has any special psychiatric ‘expertise’ in the area been established” (APA, 6). Essentially, the foremost authorities in the psychiatric field told the court that therapists have no discernable skill or accuracy at reliably predicting dangerousness. Furthermore, they established that this lack of ability was not a deficiency limited to psychology, but that nobody could make predictions to a satisfactory degree, and it was therefore not a learnable skill. These findings have enormous implications on the validity of the court’s decision. Most importantly, since reliable and accurate assessment of dangerousness is beyond the scope of a mental health professional’s abilities, it makes no sense to impose a duty that is triggered when a therapist “pursuant to the standards of his profession should determine that his patient presents a serious danger of violence” (Tobriner 1976, 3). Since a therapist’s ability to consistently make this determination is essentially no better than flipping a coin, there are no professional standards by which they should be required to do so.
The court’s initial ruling in Tarasoff – although arguably unfair to psychologists – was legally sound in that it extrapolated from past precedent to determine the specific duties of Poddar’s therapists. Since Tatiana was an identifiable third party and the plaintiffs’ allegations specifically stated that Drs. Moore and Powelson were negligent in failing to warn her, it was in keeping with the facts of the case for the Court to establish that psychologists had a duty to warn third parties. By maintaining the assertion that the defendants were guilty but by also changing the wording of the holding in their second hearing of Tarasoff, the Court passed a verdict that imposed duties beyond those relevant to the case. The first of these unnecessary additions is the phrase “should have determined that a patient poses a serious danger.” There is no reason to discuss whether a therapist should have found somebody to be dangerous in this holding because there was no doubt as to whether Dr. Moore had determined that Poddar was dangerous – he tried to have him involuntarily committed. Moore did not even deny having made this determination. Rather, he claimed – in an unfortunate choice of words – that “he owed no duty of care to Tatiana” and as a result “was free to act in careless disregard of [her] life and safety” (Tobriner 1976, 5). Obviously it would be morally irresponsible for Moore to knowingly disregard the peril that Tatiana faced, but he was not saying that he had done so: just pointing out that he felt he could have done so without breaking the law. In making this claim, he admitted that he had deemed Poddar to be dangerous, but argued that he had no special relationship to Tarasoff that would impose on him a legal duty to protect her. Since Dr. Moore acknowledged that he believed Poddar to be dangerous, the court’s addition of a contingency on whether he should have made this determination is one that solely pertains to future cases rather than a duty relevant to this case, and as such is a clear example of judicial activism.
Noting that the Court changed the phrase “give such warnings” to “exercise reasonable care” in their second verdict further demonstrates their unnecessary broadening of the initial ruling. This addition was superfluous because the plaintiffs’ complaint predicated the doctors’ alleged negligence upon having failed to warn Tatiana of potential danger. If they had instead stated that Moore should have taken some step to prevent the danger from occurring, the reasonable care clause would be justified. However, given the specificity of the complaint, there is no basis for responding with a duty to use one of a number of unspecified methods that include – but are not limited to – the remedy in question.
The unneeded additions to the 1976 Tarasoff verdict regarding the prediction of dangerousness and exercise of reasonable care make it clear that the decision was one of judicial activism, not legal interpretation. The court imposed a rule that did more than just create a way to establish guilt for defendants like Moore—it’s hypothetical and nonspecific nature made it applicable to a range of cases vastly dissimilar from the one in question. As Justice John Paul Stevens put it in his dissenting opinion on Citizens United v. Federal Election Commission, “There were principled, narrower paths that a court that was serious about judicial restraint could have taken” (Newhouse L3, 5). In refusing to simply reaffirm their earlier, more narrow decision, the court broke from their role as a judicial body and imposed a rule only fit for a legislature to pass.
Although it is important that each branch of government adhere to its specific duties in order to avoid abuse of power, there are certain cases in which leeway must be permitted to allow for a just outcome. The United States was, after all, founded by abandoning English Common Law in order to achieve freedom and justice. This step was deemed necessary in order to avoid injustice, as was asserted by our forefathers in the Declaration of Independence. This illustrates an important point in relation to the use of judicial activism. The Constitution is the highest law in the land – analogous to English Common Law – and as a result, it can only be justifiably breached by an invocation of Natural Law: that which is “possible to violate [but that we are] never justified in doing so irrespective of consequences” (Newhouse L1, 10). Since the dictates of Natural Law are considered to be self-evident truths that one cannot justifiably transgress, breaching the rights they establish would be immoral and it is therefore ethically acceptable to supersede manmade laws in order to protect those rights. As an example of the court recognizing the validity of this point of view, it is worth noting that many people alleged the verdicts in both Roe v. Wade and Brown v. Board of Education to be exercises of judicial activism (Newhouse L1, 19). While the criticism that there was little in the law to support these verdicts may be true, the rights to equality of opportunity and control over one’s own body are seen by many as inalienable, and thus, morally justify the use of extra-judicial power by means of Natural Law.
The use of judicial activism in the Tarasoff case differs from the aforementioned cases in that the expansion of the duties outlined serve only to prove negligence rather than ensure any rights – God-given or not – that were not protected by the initial verdict. The right to life is certainly one of Natural Law, but the insistence on “reasonable care,” which includes but is not limited to warning, does no more to protect this right than the duty of a warning alone. Furthermore, the duty of one person to protect another from potentially life-threatening danger is a far cry from a right asserting that they shall not be unfairly deprived of their life. Since checks on power are crucial to the smooth operation of the American system of government, it seems there can be no justification for abuses of judicial, legislative or executive power save for adherence to the higher moral code of Natural Law. As such a justification exists nowhere in the Tarasoff verdict, the 1976 ruling is an example of blatant and unjustified abuse of judicial authority rather than a noble case of breaching legal guidelines to obtain a morally correct outcome.
The Court’s abuse of power in this situation affects not only therapists, their clients, and related parties, but is indicative of a trend that can have deleterious outcomes for every member of society. Since the Supreme Court has the enormous power to establish rules of law, the fact that they at times overstep their boundaries without sufficient justification means that they can impose unnecessary and even harmful requirements on any group of citizens. Furthermore, the use of judicial discretion is just one example of the government taking advantage of their power. A similar scenario within the executive branch is the 140 pardons that Bill Clinton granted on his last day in office: reversing the convictions of and freeing from jail people whose crimes ranged from bribery and drug trafficking to solicitation of child pornography. These acts had the effect of releasing dangerous people back into society and gave them the opportunity to do more harm. Though the President does have the authority to grant pardons, doing so in such great volume on one’s last day in office is clearly an effort to fulfill personal interests rather than free people who were wrongly convicted. In considering this example, it becomes evident that any branch of government – or all three in collusion with one another – can commit acts that go beyond the intended scope of their power and that have the potential to effect the country in extremely negative ways. While the rare overextension of a government organization’s powers such as the use of judicial activism can be employed to accomplish a morally upstanding goal that is otherwise unattainable by legal means, one must be wary of and scrutinize carefully any act that does so.
The United States has a tripartite government because our forefathers realized the grave danger of any one body gaining too much power. Consequently, any overstepping of authoritative boundaries by a branch of government must have a moral justification so great that it outweighs all the potential dangers of committing such an act. Since the Tarasoff verdict clearly lacks such a justification, it serves as a powerful reminder of the potential for a well-meaning judiciary to cause harm rather than good by overstepping the bounds of their indented authority.
Clark, William P. “Vitaly Tarasoff et al. v. The Regents of the University of California et al: Dissenting.” Public Health and Ethics: A Reader. Supreme Court of California. 1 July 1976.
Kmiec, Keenan D. “The Origin and Current Meanings of ‘Judicial Activism’.” California Law Review 92.5 (2004). Web. 13 Apr. 2010.
Leonard, Judith B. “A Therapist’s Duty to Potential Victims: A Nonthreatening View of Tarasoff.” Law and Human Behavior 1.3 (1977): 309-317
Newhouse Jr., George B., and William F. Fahey. “POSC 432 Lecture One: Introduction To Class — Elements of Law.” USC, Los Angeles. 12 Jan. 2010. Lecture.
—. “POSC 432 Lecture Three: Constitutional Law, Exclusionary Rule & The Police.” USC, Los Angeles. 26 Jan. 2010. Lecture.
American Psychiatric Association., ed. “Brief of Amici Curiae in Support of Petition for Rehearing”. Issue brief no. 23042. 1974. Web. 13 Apr. 2010.
Tobriner, Matthew O. “Vitaly Tarasoff et al. v. The Regents of the University of California et al: Majority Opinion. Supreme Court of California. 23 Dec. 1974.
—. “Vitaly Tarasoff et al. v. The Regents of the University of California et al: Majority Opinion.” Public Health and Ethics: A Reader. Supreme Court of California. 1 July 1976.