L E T T E R S Editor: I read with interest Dr. Weiner’s article 1 describ- ing two prosecutions of patients because of the ac- tions of their psychiatrists under compulsion of Cal- ifornia’s Tarasoff statute 2 —namely, reporting a criminal threat 3 (or “terrorist threat,” as it is styled in some jurisdictions). In one of Dr. Weiner’s cases, Ms. B. began expe- riencing homicidal thoughts, without a realistic plan, toward a judge presiding over a minor infraction case against her. “[C]oncerned about the violent thoughts,. . .she took a bus to a local hospital and asked to be seen in psychiatric emergency services” (Ref. 1, p 240). Instead of extending care—for exam- ple, admitting her and observing for the presence of persisting violent ideas 72 hours later—the staff in- oculated itself against a lawsuit, at her expense: “[I]n accordance with Tarasoff, [they] notified the police and warned the judge. Later that night she was ar- rested and transferred to the county jail, charged with making criminal threats” (Ref. 1, p 240), subse- quently “serving several months in jail.” Ms. B. was a patient who reached out for help, and her psychiatrist instead gave her handcuffs. This is what is wrong with Tarasoff. In the other case, Mr. A., with a blood alcohol level of more than .32, made suicidal comments and also expressed homicidal thoughts about his ex-girl- friend. Evidently, so unnerved by potential duty-to- warn liability, “[a] psychiatric nurse. . .notified the police” without waiting to see how the patient might feel after his near-lethal intoxication level resolved a bit. Mr. A. was arrested (again, “later that night”), was found guilty of making a criminal threat, and was “sentenced to several years in state prison” (Ref. 1, p 240). Significantly, the trial judge found that Mr. A. had intended his homicidal ideation to be divulged to his ex-girlfriend by the psychiatrist. Mr. A. is thus an individual adjudicated to have purposely exploited psychiatric emergency personnel to carry out his criminal harassment of a third party. This is what is wrong with Dr. Weiner’s “possible remedy[:]. . .to amend the criminal threats stat- ute. . .[to] exclude threats expressed in the context of a mental health evaluation. . .” (Ref. 1, pp 240 –1). The necessary, albeit somewhat artificial, premise of all law is that the public knows of it, else how could it have any effect, good or, as in Tarasoff, bad: “in- hibit[ing] [patients] from making revelations neces- sary to effective treatment” (Ref. 1, p. 240, quoting Justice Clark, dissenting in Tarasoff). As such, the proposed statutory exemption would invite every an- tisocial grudge-holder to launder his threats through a psychiatrist and thereby to harass his victim with impunity. The duty to warn makes mental health profession- als instruments of the police, with no demonstrated benefit to individual patients or to society. For me, this makes it plainly an untenable law. Further complicating (and shoring up) the duty to warn, by resculpting an unrelated criminal statute, is in theory objectionable as a peripheral compromise that implies acceptance of the illegitimate core. Worse, practically, it would make mental health pro- fessionals, additionally, instruments of criminal ha- rassers. Paul Herbert, MD, JD Assistant Professor of Clinical Psychiatry University of Southern California Los Angeles, CA References 1. Weiner JR: Tarasoff warnings resulting in criminal charges: two case reports. J Am Acad Psychiatry Law 31:239 – 41, 2003 2. Cal. Civ. Code § 43.92 (West 2002) 3. Cal. Penal Code § 422 (West 2002) Editor: We would like to comment on Dr. Weiner’s con- cerns that Tarasoff warnings result in criminal charges and subsequent diversion of psychiatric pa- tients into the criminal justice system. 1 In Canada, we have had the luxury of observing U.S. developments before approaching the prob- lem. 2 Eventually the Supreme Court ruled on a case involving not only doctor/patient confidentiality but also solicitor/client privilege. The court addressed the duty to warn but not explicitly the duty to pro- tect. 3 The court noted that it was inappropriate for them to consider the exact steps that an expert might take to prevent harm to the public 4 making it clear that a sensible, proportioned approach was acceptable. The Canadian Psychiatric Association has, there- fore, published a position paper 5 based on these de- velopments that provides some discretion to the phy- 524 The Journal of the American Academy of Psychiatry and the Law