Dangerousness, confidentiality, and the duty to protect

Australian Psychologist

ISSN: 0005-0067 (Print) 1742-9544 (Online) Journal homepage: http://www.tandfonline.com/loi/taps20

Dangerousness, confidentiality, and the duty to protect Marilyn McMahon To cite this article: Marilyn McMahon (1992) Dangerousness, confidentiality, and the duty to protect, Australian Psychologist, 27:1, 12-16 To link to this article: http://dx.doi.org/10.1080/00050069208257569

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Dangerousness, Confidentiality, and the Duty to Protect Marilyn McMahon Department of Legal Studies La Trobe University Concern for the possible legal liabilities of psychologists involved in the provision of services to the dangerous outpatient client has increased recently. The competing interests of the obligation of confidentiality towards the client and public interest in disclosure raise substantive ethical and legal issues that have not yet been explored in Australia. The matter is further complicated by epistemic problems concerning definitions of dangerousness, and accuracy in predicting future violent behaviour. Examination of American legal precedents reveals that in several states of the U.S.A. such difficulties have not precluded the imposition of legal liability on psychologists for the violent acts of their clients - thus resulting in the controversial duty to protect. Although Australian courts may be less willing to find that psychole gists have a duty to protect the intended victims of their outpatient clients, it is suggested that psychole gists should carefully review their practice when dealing with the dangerous client. warn” the intended victim of a client’s dangerous behaviour

Recent events in Australia, and continuing developments in North America, have directed attention to the legal and ethical obligations of confidentiality owed by a psychologist to a client, and to circumstances that may justify - or even require - a breach of that confidentiality. Most contentious has been the issue of the outpatient client who threatens to cause serious physical harm to a third party. A famous American case that has been seminal in contemporary considerations of these issues is Tarasoff v. Regents of the University of California (1973; 1974; 1976) where the Supreme Court of California ultimately held that a psychotherapist had a duty to protect the intended victim of a violent client. Given the significance of this case, a brief summary of the facts is warranted.

(Tarasoff v. Regents of the University of California, 1974). However the matter did not end there; in an unusual step, taken at the request of the American Psychiatric Association, the American Psychological Association, and other organisations, the Court reopened the case for further consideration. Several piofessional associations tendered evidence that a duty to warn should not be imposed on psychotherapists because: (a) psychiatrists, psychologists and others cannot accurately predict dangerousness; and @) the imposition of such a duty would undermine confidentiality in the psychotherapist-clientrelationship, decrease the probability that persons would enter into therapy, inhibit personal disclosure and trust in the therapist for those persons who did enter therapy, and thereby decrease the efficacy of psychotherapy and counselling. The majority of the Court was unmoved by these considerations and held that a psychotherapist who determined, or according to the standards of the profession should have determined, that a client posed a serious danger of violence to another, had a legal obligation to exercise reasonable care to protect an identifiable victim of that danger. Regarding confidentiality, the Court held that confidentiality “ends where the public peril begins” (Tarasoff v. Regents of the University of California, 1976, p. 27 per Justice Tobriner). It is notable that in the second hearing of this case the Court imposed a broader obligation than a duty to warn. The Court held that a psychotherapist had a duty to protect an intended victim and that this legal obligation could be fulfilled by warning the intended victim, or those in a position to protect the victim from danger, by notifying the police or by taking any other steps that were reasonably necessary in the circumstances (Tarasoff v. Regents of the University of California, 1976). The current paper considers the legal and ethical obligations of a psychologist in Australia dealing with a dangerous or potentially dangerous outpatient client, particularly examining a possible conflict between the obligation of confidentiality owed to a client and the public interest in disclosure (to protect an intended victim).

TARASOFF V. REGENTS OF THE UNIVERSITY OF CALIFORNIA The parents of a deceased young woman, Tatiana Tarasoff, sued the psychologist and psychiatrists of a university hospital who had treated the murderer of their daughter as a voluntary outpatient. The parents claimed, and the defendants conceded, that during a session with a clinical psychologist on August 20, 1969, the client had expressed his intention to kill his ex-girlfriend (not named, but readily identifiable) when she returned from a holiday in South America. The psychologist believed that the young man, diagnosed as a paranoid schizophrenic, was likely to carry out his threat and kill the young woman. Using provisions of Californian law that provided for the involuntary detention of persons for 72 hours while they underwent psychiatric assessment, the psychologist telephoned the police and requested them to take the client (named Poddar) to a psychiatric facility where he could & assessed. Poddar was taken into custody by the police but released because he was deemed rational and he promised to stay away from his ex-girlfriend. The hospital staff were aware that Poddar had been released. Following Poddar’s encounter with the police, he discontinued psychotherapy and broke off all contact with the university hospital staff. On October 27, 1969, he killed his ex-girlfriend when she returned from her holiday abroad. Her parents subsequently sued the psychologist and psychiatrists who had been involved in the treatment of Poddar arguing that these professionals had a duty to protect their daughter from the acts of the dangerous client and their failure to take appropriate action had contributed to the death of their daughter. The parents failed in the Californian Court of Appeal (Tarasoff v. Regents of the University of California, 1973) but succeeded when they appealed to the Supreme Court of California, which found that the psychologist and psychiatrists (collectively referred to by the court as “psychotherapists”) had a “duty to ~~

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CONFIDENTIALITY Inspection of the Australian Psychological Society’s (APS) Code of Professional Conduct (APS, 1986) reveals a strong endorsement of confidentiality in the psychologist-client relationship. Specific provisions exist restricting the disclosure of information obtained: through assessment procedures (Section A:7); the consulting relationship (Section B: 1); from other professionals’(Section B: 15); witnessing case demonstrations (Section C:3); research (Section E:9); and supervision and training (Section D:2). Restrictions are placed on disclosing information to other ~

Requests for reprints to be sent to Marilyn McMahon, Department of Legal Studies, La Trobe University, Bundoora VIC 3083, Australia.

Australian Psychologist Vol. 27, No. 1, 1992 pp. 12-16

Dangerousness, Confidentiality, and the Duty to Protect professionals (Section B:l) and protections are required for the storage and disposal of records (Section B:2). Psychologists are prohibited from disclosing information about the criminal acts of clients “unless there is an ovemding legal or social obligation to do SO” (APS, 1986, p. 5). General Principle III(a) is the clearest statement of principle on confidentiality; it requires that psychologists respect the confidentiality of information obtained from persons in the course of their work as psychologists and states that disclosure of such information may only occur with the persons consent “except in those unusual circumstances in which not to do so would result in clear danger to the person or to others” (APS,1986, p. 4). The endorsed position is that of limited, discretionary confidentiality where psychologists may exercise their discretion to breach a client’s confidence in specified, limited circumstances. Such a position is consistent with the ethical codes of other professions involved in the provision of mental health services. The Code of Ethics of the Australian Association of Social Workers (AASW) permits a breach of confidentiality where the law demands or where “ethical or moral” reasons exist which justify disclosure (AASW, 1986). Similarly for psychiatrists the Australian Medical Association’s (AMA) Code of Ethics endorses confidentiality but permits disclosure of information where required by statute or for the protection of the interests of the patient (AMA, 1983). The Australian psychiatrist, John Ellard, has commented: Because of my training and my concern for my patients, my fmt reaction is to resist any request for information, no matter from whom the request may come ... but I do not argue for absolute confidentiality. If a paranoid schizophrenic were to tell me that he intended to murder the Prime Minister ... and I believed him, I would certainly tell the police (Ellard, 1970, p. 191).

Thus, there exists a common endorsement of the principle of confidentiality.with an acknowledgment that breaches may legitimately occur; a viewpoint which is also dominant in the literature on this subject (Appelbaum, Kapen, Walters, Lidz, & Roth, 1984). However the circumstances in which, and degree to which, confidentialitymay be breached remain controversial, and examination of the respective codes does not provide much assistance. References to disclosure justified by the interests of the patient, ethical or moral reasons, and the existence of a clear danger to self or others, provide little practical guidance for the practitioner. An attempt to provide more specific assistance to psychologists has occurred with the release of the Committee,on Ethical and Professional Standards (CEPS) guidelines relating to suicidal clients, which offer more explicit guidance concerning this category of persons. The guidelines advocate obtaining client consent to disclosure, and state that where a risk of suicide is identified and client consent to disclosure cannot be obtained or has been refused “confidentiality will have to be breached by informing someone appropriate” (CEPS, 1990, p. 15). Examples of persons who may be informed include the client’s general practitioner, refemng psychiatrist and, “in extreme cases”, the police. The guidelines possibly create a conflict between their specification of circumstances in which confidentiality must be breached and the discretionary language of General Principle III(a) which permits, but does not require, such disclosure.

DANGEROUSNESS Although the APS Code of Professional Conduct permits a breach of confidentiality where failure to do so would result in “clear danger to the person or to others” (APS, 1986, p. 4), bedevilling the general issue of confidentiality and the dangerous client are two major epistemic concerns: 1. Who is the dangerous client? (i.e., how is dangerousness defined and when is it determined?) 2. How accurate are psychological and psychiatric predictions of dangerousness? On the issue of defining dangerousness, a cursory examination of the literature reveals confusion and a multiplicity of behaviours that have been regarded as dangerous. Is the danger-

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ous client one who: threatens or takes action against the life of another; threatens or takes action against hisher own life; threatens physical harm less serious than homicide, such as serious assault, and rape; threatens or takes action against the property of another? And does the definition include other types of behaviour or threats where the victim traumatisation may not be immediately apparent or involve physical injury but could have long lasting, detrimental, psychological effects? The essential issues are: What sorts of behaviour should be regarded as dangerous; what probability of occurrence is required; and what is the relationship between threatened and actual dangerous behaviour (Dietz, 1981)? The generality and imprecision of the concept of dangerousness limits its utility. Recent discussion of specific behaviours and types of clients, such as child abuse (Butz, 1985), paedophiles (Kelly, 1987), sexually active HIV infected clients (Eth, 1988; Lamb, Clark, Drumheller, Frizzell, & Surrey, 1989; Neave, 1989) and clients likely to commit sexual assault (Melella, Travin, & Cullen, 1987), has helped to clarify some of the issues confounding discussions of dangerousness. The current study has focused on the dangerous client as one who threatens to kill a third party, without suggesting that dangerousness is limited to such behaviour. A further issue for the psychologist dealing with the potentially dangerous client is: Must a client make an explicit verbal threat which expressly details the intended violence to be regarded as dangerous, or is the psychologist to make a judgement based on whatever criteria are deemed valid in the absence of an explicit threat? Conversely: When would a psychologist be justified in disregarding an explicit verbal threat because other significant predictive criteria are absent? Regarding the accuracy of psychological and psychiatric predictions of dangerousness, the lengthy debates concerning research and findings will not be repeated. Substantial methodological and logical flaws existed in many of the earlier reports (Monahan, 1978; 1984), although recent “second generation” studies report improved predictive accuracy for assessments made for short periods within a given environment (Monahan, 1988). Nevertheless, predictive reliability and accuracy remain poor (Wettstein, 1984); many studies report inconsistent results (Monahan, 1988), and psychologists and others consistently overpredict dangerousness (Monahan, 1978; Steadman, 1980; Wettstein, 1984). Megargee (1976) has demonstrated the lack of utility of psychological tests in this matter, and many studies draw attention to the high rate of false positives (persons incorrectly predicted to be dangerous) (Steadman, 1980). Most significantly, much research regarding the ability to predict dangerousness is not directly applicable to psychologists working with outpatient clients; many studies have investigated the accuracy of predictions of dangerousness related to admission andor discharge decisions for persons in the mental health or criminal justice systems and usually these clients had some previous, recorded, history of violence (Schopp & Qualtrocchi, 1984). Despite these findings from empirical research, many clinicians feel competent and confident of obtaining peer approval in their assessment of dangerous behaviour. An American study by Givelber, Bowers, and Blitch (1984) asked clinical psychologists (and others) to indicate how confident they felt about their ability to predict that a client would physically harm another: Less than 5% of the psychologists felt that it was not possible to make such a prediction and 52% believed that they could make the prediction with certainty or almost certainty. This disjunction between empirical research and practitioner confidence is disquieting and may be a significant factor contributing to the legal vulnerability of psychologists because such confidence could persuade a court that accurate predictions of violence can be made. This brief account of problems in defining, identifying, and predicting dangerous behaviour emphasises the dilemma that may be experienced by a psychologist when deciding whether or not to breach a client’s confidentiality in the belief that the client is dangerous. Australian PsychologistVol. 27, No.1, 1992 pp. 12-16

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Marilyn McMahon

THE LEGAL LIABILITY OF THE PSYCHOLOGIST: DANGEROUSNESS AND CONFIDENTIALITY The legal liability of a psychologist dealing with a potentially dangerous client will be considered in relation to two situations: (a) where the psychologist breaches the confidentiality of a client in the belief that the client is a clear danger to a third party; and, conversely, (b) where the psychologist maintains a client’s confidence and the client subsequently physically harms a third party. Although Creyke and Weeks (1985) have stated that: “A counsellor may tell the police that a client has talked of murdering someone and may also inform the potential victim of the risk” (p. 56), several commentators have stressed that a psychotherapist who believes that a client is dangerous should explore this issue in therapy with the client and attempt to obtain client consent to disclosure before considering unauthorised disclosure (Roth & Meisel, 1977; Wexler, 1979; Beck, 1982). Where a psychologist chooses to disclose confidential information without the consent of the client, it is possible that an aggrieved client could take action against the psychologist for the breach of confidentiality. Where appropriate, a complaint could be made to a relevant state registration board, health complaints service and/or the APS Committee on Ethical and Professional Standards. Formal legal action might, in appropriate circumstances, be taken for breach of contract, defamation, negligent disclosure, and breach of confidence (Fox, 1984). Negligent disclosure and breach of confidence are the two most liiely sources of formal legal liability for Australian psychologists and will be considered in more detail. The New Zealand case of Furniss v Fitchett (1958) supports the proposition that a practitioner (in that case a medical practitioner) can be liable to a client where confidential information about the client has been negligently disclosed and the client suffers injury as a result (It is important to note that the injury suffered by the client must be economic loss, physical injury, or recognised psychiatric illness; mere distress, upset or grievance is not enough). By analogy with this case, a client who suffered severe psychiatric distress, emotional shock, or other injury as a result of the negligent disclosure to a third party of hidher purported dangerousness could sue a psychologist for damages for this disclosure. In response to such a claim, a psychologist could assert that the disclosure of information was permitted by the ethical code of the profession and justified in the public interest. The public interest exception or defence gives a court the opportunity to balance the competing interests of clients to have their privacy protected and the need to protect the public from harm. There is authority that the law will not protect the confidentiality of information pertaining to actual or contemplated crimes, frauds, or other iniquities (which might include suicide), although Duncan v Medical Practitioners Comminee (1986) emphasised that disclosure in the public interest was a qualification to the general principle of confidentiality and should only occur in exceptional circumstances and with disclosure limited to a responsible authority. On this latter point, Neave (1989) has suggested that where disclosure pertains to intended crime, disclosure might be more appropriately made to the police rather than an intended victim. Two very recent cases regarding confidentiality and mental health professionals suggest that intentional breaches of confidentiality may be more readily tolerated where disclosure is made because a client is perceived to be dangerous. In W v Edge11 (1988) a patient detained in an English prison security hospital sued a psychiatrist for breach of confidentiality and failed. The prisoner had been held as a security patient for five years after murdering five people and subsequently being diagnosed at trial as having significant mental impairment. The prisoner had been denied a transfer to another security hospital and, in support of his application to the Mental Health Tribunal to review this decision, consulted an independent psychiatrist for examination and report. The psychiatrist assessed the client-prisoner as still dangerous and forwarded an unfavourable report to the prisoner’s solicitor who then abandoned the appeal. The psychiatrist then independently sent a copy of his report to the Mental Health Tribunal, and requested that a copy be sent to the Australian Psychologist Vol. 27, No. 1, 1992 pp. 12-16

Home Secretary. In finding that the psychiatrist had not committed an unauthorised breach of the prisoner’s confidence, the court held that the psychiatrist’s obligation of confidentiality was circumscribed by the circumstances of the case, and that the psychiatrist owed a duty to the public as well as to the prisoner. Central to the Court’s decision was the fact that the prisoner was not an ordinary member of the public, but a person specifically detained because of his dangerousness, and this fact may limit the general applicability of the case. However, similar restrictions on the obligation of confidentiality when dealing with a dangerous client, in this case a psychiatric patient charged with sexual assaults on his daughters, were also endorsed in the New South Wales case Brown v Brooks (1988). In this case, a patient in a hospital psychiatric unit confided in a psychiatric nurse and subsequently sought to stop the nurse and others from breaching his confidence and disclosing that information to the police. Although the court acknowledged the value in maintaining confidentiality between clients and medical advisers, in the circumstances of this case where the client was being investigated and prosecuted for serious criminal offences, the requirement of confidentiality was held to be subordinate to disclosure in the public interest. Although it may be queried whether a court would adopt the same reasoning in relation to other mental health professionals and circumstances where a client had not been charged with any criminal offence, both these cases suggest that the courts may be unsympathetic to client claims of breach of confidentiality where disclosure is made to appropriate persons concerning the perceived dangerousness of a client. A final issue to consider is the converse of the previous cases: Could a psychologist be legally liable for failing to breach the confidence of a dangerous client where a third party suffered physical injury? If a client disclosed to a psychologist that hdshe had committed a murder or serious assault on another, it is technically possible that a psychologist who failed to disclose this information to the appropriate authorities could be charged with the criminal offence of misprision of a felony (failure to disclose to appropriate authorities the commission of a serious offence) in those states that still retain this offence (New South Wales and South Australia). It is important to note that this offence refers to knowledge of crimes that have been committed rather than intended offences. Prosecutions for this offence are extremely rare and it is doubtful whether it would be used against psychologists, psychiatrists, social workers or others who find out about the criminal acts of a client in the course of their professional activities (White,1983; Thompson, 1989). Concerning civil‘ liability, as previously noted, the most famous case in this area is the American case of Tarasoff v the Regents of the University of California (1973; 1974; 1976). Since this case, 11 states in the U.S.A. have established or modified by statute the duty to protect (Appelbaum & Rosenbaum, 1989). More than 30 cases have considered, and sometimes expanded, the liability of psychotherapists to include liability for damage to property, liability to classes of victims, and liability to foreseeable (but not necessarily identified) victims (Greenberg, 1984; Sedgwick, 1988). In Peck v. Counselling Service of Addison County (1985) the parents of a 29-year-old man sued a counsellor for failing to warn them that their son intended to bum down their barn. It was established that the son had expressed this threat to his counsellor, who then obtained a verbal promise from the client that he would not carry out the threat. Within 24 hours of his last counselling session, the client burned down the barn; the counsellor was subsequently sued and found liable to pay compensation to the parents for his failure to warn them. The case was significant because it extended the concept of the dangerous client to one who threatened serious harm to the property of another. Lipan‘ v. Sears, Roebuck and Co. (1980) was also significant for it extended liability to foreseeable victims, not just victims that the dangerous client had identified to his psychotherapist. However, the Californian courts declined to extend a psychotherapist’s liability to include liability for failing to warn par-

Dangerousness, Confidentiality, and the Duty to Protect ents that their daughter had suicidal tendencies (Bellah V . Greenson, 1977). Perhaps the nadir of this type of litigation occurred in Iowa in 1981 when a client sued her own psychotherapist for failing to stop her from murdering her husband (she alleged negligent treatment), and/or failing to warn her husband, thereby permitting her to carry out her crime. Her new husband also sued the psychiatrist, claiming that his negligent treatment had led to a loss of companionship with his wife (who was then serving a gaol sentence). The court rejected the claims and refused to find the psychiatrist liable (Cole v. Taylor, 1981). Concern over the scope of liability of psychotherapists in these matters has caused at least five States in the U.S.A. to enact legislation which limits the liability of psychotherapists for the dangerous acts of their clients. In summary, many cases in the U.S.A. have established that a psychotherapist treating a dangerous client has a legally recognised duty to take reasonable steps to protect a foreseeable victim and that this duty ovemdes the obligation of confidentiality to the client. Although all previous cases have arisen from a therapeutic or counselling relationship between a psychotherapist and client, it is possible that the duty to protect could arise in the context of a research project (Appelbaum & Rosenbaum, 1989). The duty to protect arises when a psychotherapist determines, or according to the standards of the profession should have determined, that a client presents a serious danger of violence to others. The task of determining dangerousness is not avoided by the claim the psychotherapists and others cannot accurately predict dangerousness; the issue is determined by asking: “What would a reasonably competent practitioner have done to determine a client’s dangerousness?” American cases have suggested that determining the degree of threat which a client poses to others may require taking an adequate client history, obtaining hospital records, recognising the “psychological profile” of the client as dangerous, and obtaining a complete medical history. Whether any or all of these practices, singularly or cumulatively, significantly improve the ability to predict the dangerousness of a client has been strongly disputed. In law, profound issues of competent practice and causation arise. If there is no reliable, valid, and common means of predicting dangerousness then it becomes difficult to state that a given psychologist has fallen below the required standard of care and thereby to argue that the failure to predict dangerousness substantially contributed to the death or injury of the victim, because the probability exists that even a diligent practitioner could not have accurately predicted the client’s dangerousness. Hence it remains possible, that it is the inherent difficulty of the predictive task, rather than its negligent performance, which causes a psychologist not to protect an intended victim. An interesting feature of American decisions in this area has been that they have focussed on considerations of public policy: the burden on psychotherapists; the consequences to the community; the prevention of future violence; and the foreseeability of harm to a third party. In considering whether Australian courts would impose similar liabilities on psychologists for the violent acts of their clients, similar factors deserve consideration; however the remainder of this paper will simply consider the potential legal liabilities of Australian psychologists.

COULD TARASOFF-TYPE LIABILITY BE IMPOSED IN AUSTRALIA? Opinion has been divided as to whether the Tarasoff approach would be adopted by Australian courts if a similar case was litigated in this country. Commentators generally have suggested that the situation is not clear (Thompson, 1989; Skene, 1990), whilst acknowledging that the principles established in that case “are not foreign to Australian law” (FOX,1984, p. 161) and that there is nothing in general principle to deny its application here (Dix, Enington, Nicolson, & Powe, 1988); a view which is also strongly held by Gerber (1981). However the Australian Law Reform Commission (1983) has expressed doubt that Australian courts would reach a similar conclusion, based on the traditional reluctance of English and Australian courts to impose affirmative duties of action. Australian and English courts generally have

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taken a more conservative approach than American courts and only in exceptional circumstances have they been willing to hold that a person is liable for the acts of another, leading Mackay (1990) to doubt that Tarasoff-type liability would be imposed under English law. The traditional position in Australian law was stated by Justice Dixon in Smith v. Leyrs (1945): “The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third” (p. 262). However, in exceptional circumstances such a duty will be imposed where a special relationship exists between the parties. Brazier (1988) has suggested that three categories of special relationship are recognised by English and Australian law, where: 1. One person has the right to control another person (a failure of control may render the first person liable for the acts of the other). For example, teachers have a duty to control students, thus in Richards v. State of Victoria (1969) the Victorian Supreme Court held that a schoolteacher had a duty to protect students from the violent behaviour of other students and therefore was liable when a student was injured in a classroom brawl as a result of another student’s violence. 2. A person has created some special sort of danger (that person may be liable to others placed at risk by their actions). For example, an adult who handed a loaded gun to a small child who then shot and injured another would be liable for the injury caused by the small child. 3. Owners of property have a duty to make their property secure to prevent danger to adjoining properties. Only the first two categories are relevant to the dangerous outpatient, and both were used as the basis of the decisions in the Tarasoff case. In that case a special relationship was held to exist between the psychotherapists and their client Poddar, seemingly based on the psychotherapists’ duty to control Poddar, and the duty to protect Tatiana Tarasoff arose from this relationship. However several commentators on the case have argued that the court’s reasoning on this vital issue was unclear, that no explanation was given as to the basis of a psychotherapist’s right to control an outpatient, and that no other explicit justification was provided for categorising the psychotherapist-client relationship as a “special relationship” (Note, 1982; Twerski, 1983; Schopp & Qualtrocchi, 1984). Twerski (1983) questioned the general validity of the reasoning in the Tarasoff cases and commented: The therapist, sitting in his office, encounters, perhaps for the first time, an apparently disturbed individual. By the end of their session he is convinced that his patient is dangerous. In what way has the therapist assumed responsibility for his patient’s further actions? Though he has engaged in treating the patient’s illness, the therapist has not taken physical custody of the outpatient, and has not otherwise involved himself in the control of his conduct @p. 1029-1030).

It is the absence of the right of a psychologist to control an outpatient client which may make it unlikely that an Australian court would impose liability on a psychologist for the violent acts of an outpatient client. In Hill v. Chief Constable of West Yorkshire (1987) the mother of the last victim of Peter Sutcliffe (the “Yorkshire Ripper”) sued the Chief Constable of Police in whose area most of the murders had occurred, claiming that the police had failed to protect her daughter. Her action failed because no special relationship was found to exist between either the police and Sutcliffe, or the police and her daughter. The police did not have any special right to control Sutcliffe at the time that the murders were committed and no special relationship was found to exist between the police and the victim, as the class of potential victims was too large (Brazier, 1988; Fleming, 1987; Mackay, 1990). By analogy, it could be argued that a psychologist treating an outpatient client who did not make a specific threat against an identifiable victim was in a similar position to the Chief Constable of Police, making it unlikely that an English or Australian court would impose a duty to protect third parties in the manner that has occurred in the United States in Lipari v. Sears, Roebuck and Co. (1980). More difficult is the situation where a client makes a threat against a specific third party, however it is still possible that without a right to control an outpatient

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client a psychologist would not be liable to protect an intended, identifiable victim. Regarding the second category of special relationship, where individuals become liable for the acts of another because they have created circumstances of danger, the second ground of the majority view and the dissenting opinions of Justices Clark and McComb in Tarasoff v. Regents of the Uniyersify of California (1974) were based on exactly this foundation: They held that by notifying the police the psychotherapists had actually contributed to the danger which confronted Tatiana Tarasoff by making it likely that Poddar would discontinue treatment (thereby eliminating the possibility of successful resolution of his anger through therapy). However, the reasoning adopted in that case would be a considerable extension of the liability hitherto recognised in Australian law, again making it unlikely that an Australian court would found a special relationship between psychologist and outpatient client on this basis. A final relevant consideration is that liability for the acts of another will not be imposed unless it is “just and reasonable” to do so (Hill v. Chief Constable of West Yorkshire, 1987, per Lord Justice Fox). Recognising the uncertain and difficult task that psychologists confront when attempting to predict outpatient dangerousness, it could strongly be argued that to impose such a liability on psychologists would be neither just nor reasonable and hence this consideration is another factor militating against imposing liability on psychologists for the dangerous acts of their outpatient clients. Nevertheless, Australian psychologists should not become sanguine on this matter and should continuously update their knowledge of relevant research and accepted, common professional practice. English and Australian courts have recently demonstrated their willingness to consider new types of liability in negligence (Logie, 1989; Markesinis, 1989) and it is not inconceivable that in a case where a victim was clearly identified, where a client revealed a detailed plan to kill the victim, possessed the appropriate weapon to do so, and where steps could reasonably have been taken to protect the victim, an adventurous Australian court would follow American precedent. In the absence of directly relevant case law, predicting how Australian courts would deal with this issue is perhaps even a more risky task than predicting dangerousness itself.

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