Code Details

Civil Code – CIV
DIVISION 1. PERSONS [38 – 86] ( Heading of Division 1 amended by Stats. 1988, Ch. 160, Sec. 12. )
PART 2. PERSONAL RIGHTS [43 – 53.7] ( Part 2 enacted 1872. )

Exact Statute Text

(a) There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to protect from a patient’s threatened violent behavior or failing to predict and protect from a patient’s violent behavior except if the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.

(b) There shall be no monetary liability on the part of, and no cause of action shall arise against, a psychotherapist who, under the limited circumstances specified in subdivision (a), discharges his or her duty to protect by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency.

(c) It is the intent of the Legislature that the amendments made by the act adding this subdivision only change the name of the duty referenced in this section from a duty to warn and protect to a duty to protect. Nothing in this section shall be construed to be a substantive change, and any duty of a psychotherapist shall not be modified as a result of changing the wording in this section.

(d) It is the intent of the Legislature that a court interpret this section, as amended by the act adding this subdivision, in a manner consistent with the interpretation of this section as it read prior to January 1, 2013.

(Amended by Stats. 2012, Ch. 149, Sec. 1. (SB 1134) Effective January 1, 2013.)

Civil Code § 43.92 Summary

California Civil Code § 43.92 outlines the limited circumstances under which a psychotherapist can be held liable for a patient’s violent behavior, and when they are immune from such liability. Generally, psychotherapists are not financially responsible for failing to predict or prevent a patient’s violent actions. However, an exception arises if a patient directly communicates to the psychotherapist a serious threat of physical violence against a specific, identifiable victim or victims.

In such limited cases, the psychotherapist has a “duty to protect.” If they fulfill this duty by making reasonable efforts to communicate the threat to both the identified victim(s) and a law enforcement agency, they are immune from monetary liability. Subdivisions (c) and (d) clarify the legislative intent behind amendments made in 2013, stating that the change in terminology from “duty to warn and protect” to “duty to protect” was not a substantive alteration of the duty itself, and courts should interpret the section consistently with prior law. This statute essentially codifies and refines the psychotherapist’s responsibility to balance patient confidentiality with public safety.

Purpose of Civil Code § 43.92

Civil Code § 43.92 serves a crucial dual purpose in California law, aiming to balance the critical need for patient confidentiality in psychotherapy with the paramount concern for public safety. Prior to this statute, the common law duty established by the *Tarasoff* case created uncertainty regarding the precise scope of a psychotherapist’s responsibility. The Legislature enacted this section to provide clear, actionable guidelines for psychotherapists.

Its primary purpose is to define the specific, limited circumstances under which a psychotherapist has a legal obligation to breach patient confidentiality to prevent harm. By setting precise parameters – specifically requiring a *patient’s direct communication* of a *serious threat of physical violence* against a *reasonably identifiable victim* – the statute protects psychotherapists from undue liability. It prevents them from being sued for failing to predict unpredictable violence or for disclosing confidential information without just cause. Conversely, it ensures that when such a clear and serious threat is made, there is a legal mechanism to prompt intervention, thereby protecting potential victims. This clarity benefits both the public by enhancing safety and psychotherapists by providing a legal “safe harbor” when they appropriately discharge their duty.

Real-World Example of Civil Code § 43.92

Consider a scenario involving a patient named Mark who is undergoing therapy with Dr. Eleanor Vance, a licensed psychotherapist.

Scenario 1 (No Duty to Protect): During a session, Mark expresses extreme frustration and anger about his ex-girlfriend, Sarah, who recently broke up with him. He says things like, “I’m so mad at her, I wish she’d just disappear,” or “I could just scream whenever I think about what she did to me.” While these statements convey anger, Mark does not communicate a direct or serious threat of physical violence against Sarah. In this case, Dr. Vance has no duty under Civil Code § 43.92 to warn Sarah or contact law enforcement. Disclosing this information would violate patient confidentiality, and Dr. Vance would be immune from liability if Mark later, on his own, were to harm Sarah, as she had not received a direct, serious threat from him.

Scenario 2 (Duty to Protect Triggered): Weeks later, Mark attends a session visibly agitated. He states directly to Dr. Vance, “I can’t take it anymore. I’m going to go to Sarah’s apartment tonight and make her pay for what she did. I’m going to physically harm her.” Sarah is a “reasonably identifiable victim.” At this point, Civil Code § 43.92(a) triggers Dr. Vance’s duty to protect.

To discharge this duty and gain immunity under Civil Code § 43.92(b), Dr. Vance must make reasonable efforts to:
1. Communicate the threat directly to Sarah.
2. Communicate the threat to a law enforcement agency (e.g., the local police department).

If Dr. Vance takes these reasonable steps, and Mark subsequently goes to Sarah’s apartment and harms her, Dr. Vance would be protected from monetary liability. However, if Dr. Vance fails to act on Mark’s explicit, serious threat, and Mark harms Sarah, Dr. Vance could face a personal injury lawsuit for professional negligence, as she failed to fulfill her duty to protect.

Related Statutes

• Evidence Code § 1010 – “Psychotherapist” Defined: This statute is directly referenced in Civil Code § 43.92(a) and defines who qualifies as a “psychotherapist” for the purposes of the psychotherapist-patient privilege and, by extension, the duty to protect. It includes psychiatrists, licensed psychologists, licensed clinical social workers, licensed marriage and family therapists, and others. Understanding this definition is crucial for determining who is subject to the duties and immunities of CC § 43.92.
• Evidence Code § 1024 – Dangerous Patient Exception: This exception to the psychotherapist-patient privilege allows a psychotherapist to disclose confidential communications when they have reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or herself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger. Civil Code § 43.92 specifies the circumstances under which this exception *must* be invoked to prevent harm to third parties and provides immunity when that duty is properly discharged. The two statutes work in tandem: Evid. Code § 1024 allows disclosure, while Civ. Code § 43.92 mandates and specifies when that disclosure is a duty, and when it provides immunity.

Case Law Interpreting Civil Code § 43.92

The legal landscape surrounding a psychotherapist’s duty to warn and protect originates from the landmark case of *Tarasoff v. Regents of the University of California*. While Civil Code § 43.92 codifies and refines this common law duty, several cases have interpreted its application:

• Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425: This foundational case established the “Tarasoff duty,” holding that when a psychotherapist determines, or reasonably should have determined, that a patient poses a serious danger of violence to others, the therapist incurs an obligation to use reasonable care to protect the intended victim. This duty may require the therapist to warn the intended victim or others likely to apprise the victim of the danger, or to notify the police. While predating the current statute, *Tarasoff* is the origin of the “duty to protect” concept in California.

* [Link to *Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425 (1976)* on Google Scholar](https://scholar.google.com/scholar_case?case=8691866367356269661)

• Ewing v. Goldstein (2004) 120 Cal.App.4th 807: This case addressed the interpretation of “communicated to the psychotherapist” within Civil Code § 43.92. The court held that the duty to protect an identifiable victim arises not only when the patient directly communicates a serious threat, but also when information communicated to the psychotherapist *by a member of the patient’s family* leads the psychotherapist to believe the patient poses a serious risk of grave bodily injury to an identifiable victim. This expanded the understanding of how a “serious threat” could be communicated, even if not directly from the patient’s mouth, if the information originates from the patient and is conveyed by a close family member to the therapist, and leads the therapist to a belief that the patient poses a serious risk.

* [Link to *Ewing v. Goldstein, 120 Cal. App. 4th 807 (2004)* on Google Scholar](https://scholar.google.com/scholar_case?case=17620719119660235334)

• Calandri v. Ione Unified School Dist. (2007) 157 Cal.App.4th 593: While not directly about a psychotherapist, this case references Civ. Code § 43.92 in discussing the scope of a duty to warn or protect in the context of school counselors and their interactions with students regarding threats of violence. It underscores the public policy considerations behind such duties and immunities.

* [Link to *Calandri v. Ione Unified School Dist., 157 Cal. App. 4th 593 (2007)* on Google Scholar](https://scholar.google.com/scholar_case?case=15309990760076214539)

Why Civil Code § 43.92 Matters in Personal Injury Litigation

Civil Code § 43.92 is a cornerstone statute in California personal injury litigation involving alleged psychotherapist negligence. It directly impacts whether a psychotherapist can be held liable when their patient harms a third party.

For plaintiffs, this statute sets the strict boundaries for proving negligence against a psychotherapist. To succeed in a personal injury claim, a plaintiff must demonstrate that:
1. The psychotherapist’s patient communicated a *serious threat of physical violence*.
2. The threat was directed at a *reasonably identifiable victim or victims*.
3. The psychotherapist *failed to make reasonable efforts* to communicate that threat to the victim(s) and a law enforcement agency.
If these conditions are not met, the psychotherapist is largely immune from liability, making these cases challenging to pursue without clear evidence of a direct threat. *Ewing v. Goldstein* offers a potential avenue for plaintiffs where the threat was communicated via a family member, broadening the scope slightly from direct patient communication.

For defense attorneys representing psychotherapists, Civil Code § 43.92 provides a powerful shield. The statute clarifies that psychotherapists are immune unless the precise conditions of subdivision (a) are met. Defense strategies often focus on arguing that:

• The patient’s statements did not constitute a “serious threat of physical violence” but rather expressions of anger or generalized ideation.
• The victim was not “reasonably identifiable.”
• The therapist made “reasonable efforts” to discharge their duty once a threat was identified, thereby qualifying for immunity under subdivision (b).

Understanding Civil Code § 43.92 is critical for both sides to assess the viability of a claim, develop litigation strategies, and navigate the complex ethical and legal responsibilities of psychotherapists. It directly affects outcomes in cases of wrongful death, assault, or battery where a patient’s actions are at issue, holding psychotherapists accountable only under the very specific circumstances defined by the law.