The dangerous patient exception to the psychotherapist-patient privilege: The Tarasoff duty and the Jaffee footnote

With the U.S. Supreme Court's 1996 decision in Jaffee v. Redmond, all U.S. jurisdictions have now adopted some form of evidentiary privilege for confi dential statements by patients to psychotherapists for the purpose of seeki ng treatment. The majority of states, following the decision of the Supreme Court of California in Tarasoff v. Regents of the University of California , have also adopted some form of duty by psychotherapists to breach confide ntiality and warn potential victims against foreseeable violence by their p atients. Largely unresolved is whether there should be a dangerous patient exception to the evidentiary privilege parallel to the Tarasoff exception t o confidentiality. This Article argues that exception to the evidentiary pr ivilege should be evaluated separately from the exception to confidentialit y. Whether or not a Tarasoff duty to warn existed at an earlier time, excep tion to the evidentiary privilege should be made only where psychotherapist s' testimony is necessary to prevent future harm to patients or identified potential victims. Applying this standard, the dangerous patient exception generally would not apply in criminal actions against patients, but would a pply only in proceedings for the purpose of protecting patients or third pa rties, such as restraining order hearings or proceedings to hospitalize pat ients.