The responsibility of a therapist to his clients and others

CHARLES J. UNGER

Here is a situation that combines my careers as an attorney and as a

psychotherapist.

Generally, when a client comes to see me in my capacity as a

therapist, that which he or she says to me is protected. The client

knows what they say stays within the four walls of the counseling

office. Throughout history, there have been two, or more

appropriately 1 1/2, exceptions to that rule. The first exception is

if a client comes in and tells me that he is getting ready to murder

another individual. I am under an obligation to contact both the

individual and the police station in the town where the individual

lives. Second, if the individual is imminently suicidal, it is my

obligation to look out for the welfare of the client, and if that

includes contacting a relative, I can do so at my discretion.

Well, earlier this month, that all changed. The case was the

matter of Ewing v. Goldstein, and it expanded the obligation of the

therapist. It indicates that if I were to learn that a client of mine

was getting ready to kill someone, even if I learned it from someone

other than my client, I am now obligated to let the third party know.

In this case, Keith Ewing was killed by former Los Angeles Police

Officer Geno Colello in 2001. Colello was less than pleased to learn

that his ex-girlfriend was dating Ewing.

After a conversation with his son on June 21, 2001, Colello’s

father called his son’s therapist, Dr. David Goldstein. He told

Goldstein that his son was getting ready to kill Ewing. Goldstein

urged Colello’s father to take Colello to Northridge Hospital Medical

Center, where Goldstein arranged for him to receive psychiatric care.

Colello was voluntarily admitted that evening. Goldstein did not warn

Ewing of this imminent threat, nor did he contact the local police

department.

Colello was discharged the next day. Goldstein had no further

contact with his patient. On June 23, Colello killed Ewing and then

killed himself.

Ewing’s parents brought a lawsuit against Goldstein. As per the

state of the law at that time, the judge dismissed the lawsuit,

indicating Goldstein would be liable only if “the patient has

communicated to the therapist a serious threat of physical violence

against a reasonably identifiable victim or victims.” Well, that was

the law. The 2nd District Court of Appeal decided that there other

times when protecting an individual’s safety trumps the keeping of a

confidence. The court held that this lawsuit could go forward.

The end result would be to change the way therapists, such as

myself, handle these situations. Now, if I were to receive the news

that Goldstein received from a third party and not directly from my

client, I would have strongly considered taking action.

Goldstein’s attorney indicates they might well appeal this ruling

and frankly, they should. I don’t necessarily think that it’s a bad

idea to require a therapist to take action if they learn, from a

third party, of a murder their client is about to commit; however,

that is not the law at this time. If the Legislature wants to pass

such a law, then fine. All we can do is try to follow the law, and

right now Civil Code 43.92 is very clear in the requirement that

the communication be from the patient in order to kick in the

therapist obligation to warn.

All therapists are familiar with this obligation as it is part of

everyone’s training. It is generally referred to as a “Tarasoff

warning,” due to the case Tarasoff v. Regents of the University of

California in 1976. In this case, a therapist was appropriately found

to be liable when his patient murdered a woman after the patient had

made serious and imminent threats pertaining to the woman at his

counseling session. Needless to say, that is very different from the

present case, and that has been the state of the law for the past 28

years.

I think that this ruling will be reversed on appeal. If the people

of the state of California want the law to change, then the

Legislature or the referendum system can accomplish that.

* CHARLES J. UNGER is a criminal defense attorney in the Glendale

law firm of Flanagan, Unger & Grover, and a therapist at the Foothill

Centre for Personal and Family Growth. Mr. Unger writes a bimonthly

column on legal and psychological issues. He can be reached at

www.charlieunger.com or at 244-8694.