The Honorable Ronald M. George

September 24, 2004

Chief Justice, California Supreme Court

And the Associate Justices of the Court

303 Second Street, South Tower

San Francisco, CA 91047-1317

RE:Letter requesting Review of

Cal Ewing, et al., v. David Goldstein, PhD

(Supreme Court Case No. S127363; 2nd Civil No. B163112)

Dear Chief Justice George and Associate Justices:

The Court of Appeal, Second Appellate District, Division Eight, erroneously concluded in Cal Ewing, et. al. v. David Goldstein, PhD that a serious threat of physical violence communicated to a therapist not by the client, but by third parties (the patient’s family) triggered a duty to breach the client’s confidentiality and warn the potential victim and or the police. (Slip Opn., p. 6.) In doing so, the court of appeal reached an incorrect and professionally unworkable result. On behalf of the National Association of Social Workers (NASW) and the NASW California Chapter, and pursuant to California Rules of Court, Rule 14(b), we strongly support the petition for review that was filed by defendant and respondent David Goldstein, Ph.D. If review is not granted, pursuant to California Rules of Court, Rule 979, we support the request that the decision not be published.

The Court of Appeal determined, contrary to existing statutory law contained in California Civil Code section 43.92, that communications from family members of a patient to a therapist can give rise to a duty to warn others of potential harm. The court ignored the clear statutory construction of the California Civil Code which requires the communication to come directly from the client. In effect, the opinion requires a therapist to determine the veracity of individuals, who are not clients, or run the risk of facing civil liability for failure to warn.

The impact of the appellate court’s ruling will be to require all California therapists to breach client confidentiality when they obtain information regarding the potential violent nature of a client if that information comes from sources other than the patient.

THE NATIONAL ASSOCIATION OF SOCIAL WORKERS HAVE A STRONG INTEREST IN THIS CASE

With over 153,000 members, NASW is the largest professional association for social workers in the world. The California Chapter is one of the largest NASW chapters, with over 11,800 members. There are nearly 16,000 licensed clinical social workers in California. Thus, the duty to warn enunciated in the decision of Tarasoff v. The Regents of the University of California (1976) 17 Cal.3d 425, and the immunity from monetary liability provided in Civil Code section 43.92 are directly applicable to its members.

Clinical social workers in California provide professional services in a variety of settings, including private and group practices, clinics, community mental health centers, employee assistance programs, rehabilitation, and long-term care facilities. They may provide immediate psychotherapeutic care to patients, and may, because of the settings, become involved or meet friends and family of the client. The decision of the Court of Appeal now requires the therapist to determine if a client is a danger to others, not only based on information received from the client, but from family members and other third parties. The imposition of such a duty seriously compromises the confidentiality of the psychotherapist/patient relationship.

THE COURT OF APPEAL DECISION ASSUMES THAT FAMILY MEMBERS ALWAYS PROVIDE ACCURATE INFORMATION AND ACT IN THE BEST INTERESTS OF THE CLIENT WHEN COMMUNICATING TO THE THERAPIST.

In arriving at its decision, the Court of Appeal makes an apparent assumption that family members always provide accurate information and act in the best interest of the client when communicating to the therapist. Often times, the greatest source of distress to the patient is the family. The confidentiality of the psychotherapist-patient relationship allows the patient to communicate to the therapist about problems without the interjections of the family members. As the Court of Appeal noted in Trear v. Sills (1999) 69 Cal.App.4th 1341, in the context of therapy, the interests of the patient may be at odds with the interests of the family. The decision in Ewing v. Goldstein however, has paved a path for family members to insert themselves directly into the therapist/client relationship and requires the therapist to at a minimum listen to the family members to determine if there is any veracity to statements made by them.

THE DECISION DOES NOT ADDRESS ANY EXISTING INADEQUACY IN THE STATUTE; RATHER IT CONFUSES EXISTING STANDARDS OF CARE BY ELIMINATING THE THERAPIST’S ABILITY TO ASSESS THE SERIOUSNESS OF THE THREAT.

The law as it stood before Ewing v. Goldstein was both reasonable and adequate. Civil Code section 43.92 provided that there was no cause of action for failing to predict and warn unless the client communicated to the therapist a serious threat of harm against a reasonably identifiable victim. Implicit in the duty established by the state was the understanding that the therapist was able to assess if a threat was “serious” based on the client’s own words and admissions during therapy. The Court of Appeal did not point to any facts, or to any other authority, that the report by the client’s family member of a serious threat is better than the therapist’s direct assessment of the client.

In Tarasoff, the California Supreme Court noted in articulating the duty to warn that the ability to predict violence while dependent on the standard of practice, arose out of the ability of the therapist to make professional evaluations. (Id. at p. 439.) As the Court stated in Tarasoff:

“... the judgment of the therapist in diagnosing emotional disorders and in predicting whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under accepted rules of responsibility.”

Since the therapist does not have the duty or the opportunity to assess the third party who reported the potentially violent behavior, the opinion regarding potential for violence is based more on the sharing of the hearsay information rather than on a professional evaluation of it. The therapist is then left to either report and violate his patient’s confidence, and possibly embarrass or harm the patient, or do nothing.

The opinion further adds to the confusion because it is not clear to what degree of familial relationship the therapist must act on. The family or other third parties who have received the information are capable of notifying the police or other authority figures. To add that responsibility to the mental health provider overextends the provider’s professional responsibility to third parties so that it interferes with the basic professional duties of the caregiver.

CONCLUSION

The Second Appellate Court’s ruling in this case is seriously flawed and should be reviewed. It unnecessarily changes existing law. It imposes a burden on psychotherapists and jeopardizes the confidential relationship between a therapist and a patient which is the cornerstone of the psychotherapeutic relationship.

NASW, and its members in California, urge this Court to grant the petition for review.

Respectfully submitted,

JanLee Wong, Executive Director

National Association of Social Workers, California Chapter

By: ______

Carolyn I. Polowy, NASW General Counsel

______

Sherri Morgan, NASW LDF Associate Counsel