Austrian Psychtherapy Act: No Legal Duty to Warn, The


THE AUSTRIAN PSYCHOTHERAPY ACT: No LEGAL
DUTY TO WARN

SHALL THE UNITED STATES FoLLow THE LEADER IN THE FIELD

OF PSYCHOTHERAPY?

I. INTRODUCTION

The Austrian Psychotherapy Act provides no exceptions to patient
confidentiality.' It is the only one of its kind, internationally. 2 The Act runs
directly counter to the law in the United States, which provides for numerous
exceptions to patient confidentiality In addition, the American "Tarasoff
rule"4 creates a duty of therapists to warn potential victims when patients
communicate to therapists the intent to cause serious bodily harm to those
victims.' The crux of the debate is the weight to be given two interests: (1)

1. See Karen Gutierrez-Lobos, et al., Wrapped in Silence: Psychotherapists and
Confidentiality in the Courtroom, 44 INT'L J. OF OFFENDER THERAPY & COMP. CRIMINOLOGY
33 (2000), 2000 WL 13918460.

2. See id.
3. See infra notes 98-135. See also Tarasoff v. Regents of University of Cal., 551 P.2d

334, 339-40 (Cal. 1976) (establishing therapists' duty to warn third parties of imminent danger
posed by patients); Jaffee v. Redmond, 116 S.Ct. 1923, 1931-32 (1996) (recognizing
psychotherapist-patient privilege, but indicating that the privilege is not absolute); In re
Lifschutz, 467 P.2d 557, 561 (Cal. 1970) (holding that a litigant-patient exception to the
statutory psychotherapist-patient privilege does not unconstitutionally infringe rights of privacy
of either psychotherapists or their patients); People v. Stritzinger, 668 P.2d 738, 742-45 (Cal.
Ct. App. 1982) (holding that psychologist's report of suspected child abuse based upon
communication from patient's child fulfilled reporting obligation, and that psychologist was not
thereafter required to disclose related communications from patient); Ritt v. Ritt, 238 A.2d 196,
198-99 (N.J. Ct. App. 1967) (holding that communications between plaintiff-wife and
psychiatrist were not protected from disclosure during depositions, and reasoning that the
patient only had a limited right to confidentiality, subject to exceptions created by supervening
interests of society. Here, the supervening interest was the fact that institution of litigation by
the patient constituted vitiation of her right to absolute confidentiality), rev'd, 244 A.2d 497,
499 (New Jersey Supreme Court held that the issue had been subsequently decided because the
New Jersey legislature had enacted a statute creating the physician-patient privilege that would
cover the psychiatric relationship here).

4. This rule arose from the case of Tarasoff, 551 P.2d at 339-40. In that case, police
officers and therapists failed to warn a victim of a patient's intention to kill her. Id. at 340. The
patient killed the victim. See id. at 339. The victim's parents filed suit against the police
officers and therapists for failure of their duty to warn the victim and failure to confine the
patient. See id. at 340. The court rejected all claims against the police officers. See id. at 353.
The court also rejected the claim against the therapists for failure to confine the patient. See id.
at 351. However, the court held that the therapists' special relationship with the patient
transferred to the victim. See id. at 344. Therefore, the court held, the therapists had a duty to
use reasonable care in warning the victim of danger. See id. at 340.

5. See id



IND. INT'L & COMP. L. REV.

the patient's right to confidentiality and therapist's need to maintain the trust
of his patient, and (2) the public's right to be protected from dangerous
individuals.' Austria places greater emphasis on the former;7 the United States
assigns higher value to the latter.8

Because tort claims for therapist misfeasance are frequently litigated in
the United States, it may be time for America to look at its international
contradiction. This Note will compare the U.S. and Austrian systems. Part H
discusses the basis of the debate between patient rights and public safety. Part
III explains the Austrian Psychotherapy Act's rationale, provisions, and
effects. Part IV explains the U.S. system, including a discussion of the general
right of patients to confidentiality and exceptions to this right. Part V
compares the Austrian and American systems. Finally, Part VI proposes a
change in the status of American law.

H. THE DEBATE: PATIENT RIGHTS VS. PUBLIC SAFETY

The debate centers on the relative weight of two interests: (1) the
patient's right to confidentiality and therapist's need to maintain the trust of
his patient, and (2) the public's right to be protected from dangerous
individuals.9

A. The Patient's Right to Confidentiality'0 & the Therapist's Need to
Maintain the Trust of the Patient

Numerous arguments have been asserted in favor of retaining patient
confidentiality." First, without a confidentiality right, prospective patients in
need of treatment will be deterred from seeking help. 2 Second, absent a

6. See id. See also Catherine Agnello, Advocating for a Change in the Massachusetts
HIV Statute: Putting an End to Physician Uncertainty, 2 SUFFOLK J. TRIAL & APP. ADVOC.
105, 105-06 (1997).

7. See Karen Gutierrez-Lobos, et al., supra note 1.
8. See Tarasoff, 551 P.2d at 347.
9. See id. at 340; Agnello, supra note 6, at 105-06.

10. See In re Lifschutz, 467 P.2d 557, 567-68 (Cal. 1970). See also Ellen W. Grabois,
The Liability of Psychotherapists for Breach of Confidentiality, 12 J. L. & HEALTH 39, 49-53
(1998) (discussing the nature of the confidentiality relationship between patient and therapist).

11. See infra notes 12-20 and accompanying text.
12. See Tarasoff, 551 P.2d at 359 (Cal. 1976) (Clark, J., dissenting). See also Matthew

Carmody, Mandatory HIV Partner Notification: Efficacy, Legality, and Notions of Traditional
Public Health, 4 TEx. F. ON C.L. & C.R. 107, 135 (1999) (suggesting that mandatory disclosure
of HIV seropositivity will deter potential patients from being tested and receiving treatment
necessary to curb the spread of the disease); Roger Doughty, The Confidentiality of HIV-Related
Information: Responding to the Resurgence ofAggressive Public Health Interventions in the
AIDS Epidemic, 82 CAL L. REv. 113, 165 (1994) (suggesting that the stigma and potential
discriminatory effects surrounding HIV seropositivity will deter patients from being tested and
receiving treatment). But see Tarasoff, 551 P.2d at 346 (arguing that such predictions are
entirely speculative).

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THE AUSTRIAN PSYCHOTHERAPY ACT

guarantee of confidentiality, patients will be discouraged from making full
disclosures necessary to their treatment. 3 Third, confidentiality is necessary
to maintain the trust of the patient, 4 which is essential to any therapeutic
relationship.' Fourth, by decreasing effectiveness of treatment, imposition of
a duty increases danger to society of violence by the mentally ill.' 6 Fifth, the
duty to warn may deprive patients of two of their constitutionally protected
rights, namely, the right of privacy and the right to receive treatment."' Sixth,
imposition of liability for failure to warn will discourage therapists from
treating patients with violent tendencies.'" Seventh, potential liability may
discourage therapists from testifying on behalf of patients because disclosures

13. See Tarasoff, 551 P.2d at 359 (Clark, J., dissenting). See also Lifschutz, 467 P.2d at
567-68 (discussing potential for patient deterrence, but holding that patient's right to
confidentiality is not absolute); AMERICAN MEDICAL ASSOCIATION COUNCIL ON ETHICAL AND

JUDICIAL AFFAIRS, CODE OFMEDICAL ETHICS § 5.05 (2000) (discussing importance that patient
feel free to disclose information to physician); Donald H.J. Hermann & Rosalind D. Gagliano,
Symposium on AIDS and the Rights and Obligations of Health Care Workers: AIDS,
Therapeutic Confidentiality, and Warning Third Parties, 48 MD. L. REv. 55, 69 (1989)
(suggesting that the threat of liability may deter therapists from inquiring into dangerous
activities of patients with HIV).

14. See Tarasoff, 551 P.2d at 359-60 (Clark, J., dissenting). See also Gutierrez-Lobos,
et al., supra note 1 (suggesting that confidentiality is important for effective psychotherapy);
Vanessa Merton, Confidentiality and the "Dangerous'" Patient: Implications of Tarasofffor
Psychiatrists and Lawyers, 31 EMORY LJ. 263, 306-08 (1982) (arguing that informing the
patient of the limitations of confidentiality may destroy the necessary trust relationship between
patient and therapist). But see id. at 271 (suggesting that informing the patient of the potential
need to disclose information may actually make the trust relationship between the patient and
therapist stronger).

15. See generally supra note 14.
16. See Tarasoff, 551 P.2d at 360 (Clark, J., dissenting).
17. See Wyatt v. Stickney, 325 F.Supp. 781, 784 (M.D.Ala. 1971). See also People v.

Feagley, 535 P.2d 373, 386-87 (Cal. 1975) (discussing constitutional right of involuntarily
committed patients to receive treatment); Lifschutz, 467 P.2d at 567-68 (discussing right to
privacy); Tarasoff, 551 P.2d at 360 (Clark, J., dissenting) (suggesting that imposition of a duty
to warn will increase the risk of civil commitment of those who should not be confined, thus
increasing the risk that the right to personal liberty will be violated); Nason v. Superintendent
of Bridgewater State Hosp., 233 N.E.2d 908, 913 (Mass. 1968) (discussing the right to receive
treatment).

18. See, e.g., Allison L. Almason, Personal Liability Implications of the Duty to Warn are
Hard Pills to Swallow: From Tarasoff to Hutchinson v. Patel and Beyond, 13 J. CONTEMP.

HEALTH L. & POL'Y 471, 495 (1997); Gutierrez-Lobos, et al., supra note 1; Hermann &
Gagliano, supra note 13, at 69; Ginger Mayer McClarren, The Psychiatric Duty to Warn:
Walking a Tightrope of Uncertainty, 56 U. CIN. L. REv. 269, 284 (1987); Merton, supra note
14, at 311. See also Judy E. Zelin, J.D., Annotation, Physician's Tort Liability for
Unauthorized Disclosure of Confidential Information about Patient, 48 A.L.R.4th 668 (1986).
The author notes that most states provide a private cause of action against licensed health care
providers who impermissibly disclose to third parties confidential information obtained in
course of treatment relationship. See id. Depending on the jurisdiction, the claim may be filed
as breach of contract, malpractice, breach of fiduciary duty, act of fraud/misrepresentation, or
breach of specific civil statute permitting award of damages. See id. In addition, licensed
health care providers who breach confidentiality of patients run risk of professional disciplinary
action. See id.

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IND. INT'L & COMP. L. REV.

made while testifying may form the basis for lawsuits against therapists.'9

Finally, the duty is not practical because predictions of dangerousness are
unreliable, thus the duty may result in unnecessary warnings being given or
necessary warnings not being given.'0

B. Public's Right to be Protected from Dangerous Persons

On the contrary, numerous arguments have been advanced in favor of a
duty to warn.' The most prevalent of these arguments is that "[tihe protective
privilege ends where the public peril begins."2 The Tarasoff court stated,

[T]here now seems to be sufficient authority to support the
conclusion that by entering into a doctor-patient relationship
the therapist becomes sufficiently involved to assume some
responsibility for the safety, not only of the patient himself,
but also of any third person whom the doctor knows to be
threatened by the patient.23

The relationship between the therapist and patient is comparable to that
of a medical doctor and patient because therapists receive training to treat
patient disorders just as medical doctors are trained to treat patient diseases.2'
Thus, patient dependence on a therapist's judgment in diagnosing emotional
disorders and predicting dangerousness is as justified as is patient dependence
on a medical doctor's prognosis.25

19. See Merton, supra note 14, at 311.
20. See, e.g., Tarasoff, 551 P.2d at 354 (Mosk, J., dissenting); People v. Burnick, 535 P.2d

352, 365 (Cal. 1975) (en banc); Donna Dickinson, Ethical Issues in Long Term Psychiatric
Management, 23 J. MED. ETHics 300, 302-03 (1997); Simon A. Hill, The Man Who Claimed
to Be a Paedophile [sic], 26 J. MED. ETHIcs 137,137-38 (2000); The Honorable Robert J. Kane
& George Sigel, Violence Prediction: Revisited, 20 N.ENG. J. ON CRIM. & CIV. CONFINEMENT
63, 64-70 (1993); Merton, supra note 14, at 296-301; Joshua M. Weiss, Idiographic Use of the
MMPI-2 in the Assessment of Dangerousness Among Incarcerated Felons, 44 INT'L J. OF
OFFENDER THERAPY & COMP. CRIMINOLOGY 70 (2000), 2000 WL 13918463. But see Tarasoff,
551 P.2d at 346 (concluding that professional inaccuracy in predicting violence does not negate
a therapist's duty to protect the threatened victim and that the risk of unnecessary warnings
being given is a reasonable price to pay for the lives of victims saved).

21. See Tarasoff, 551 P.2d at 347.
22. Id. at 347.
23. Id. at 344.
24. See id. at 345.
25. See id.

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THE AusTIAN PSYCHOTHERAPY AcT

I. AUSTRIA: "THE HOME OF MODERN PSYCHOLOGY ' 26

Austria has spawned cutting-edge psychological scholars and theories.
Sigmund Freud,27 Anna Freud,28 Alfred Adler, 9 and Viktor Frankl3 are but a
few. Perhaps Austria is still ahead of its time with its Austrian Psychotherapy
Act. Or perhaps the rest of the world is smart to remain skeptical.

A. The Austrian Psychotherapy Act

The home of modem psychology is protecting its creation. In 1991,
Austria enacted the Austrian Psychotherapy Act.3' The Austrian
Psychotherapy Act provides that "[p]sychotherapists, as well as their auxiliary
staff, shall be obliged to keep confidential all secrets shared with them or
becoming known to them in the exercise of their profession."32  Even
information obtained from children or juveniles is generally protected under
the Act.33 Children's legal representatives are only given information
regarding the nature, extent, and cost of psychotherapy, not the children's
personal secrets.' This requirement of confidentiality is not without its
penalties. Section 23 of the Act provides that professionals who violate
Section 15 of the Act shall be subject to a maximum monetary fine of fifty
thousand Austrian shillings,35 or shall be punished in the criminal courts if the

26. Sigmund Freud began the era of "modem psychology" in the late 1800s with his
development of psychoanalysis. LESTER A. LEFrON & LAURA VALVATNE, MASTERING
PSYCHOLOGY (3rd ed. 1988). For an interesting discussion of the atmosphere of Vienna in
which psychoanalysis was born, see FREDERIC MORTON, A NERVOUS SPLENDOR: VIENNA
1888/1889, 54 (1979).

27. Sigmund Freud developed the theory of psychoanalysis. See LEFrON & VALVATNE,
supra note 26. He focused on the unconscious and on how it directs human behavior. See id.
"Almost a century ago, Freud pointed out the importance of the therapist's duty of discretion
about the insights emerging from access to the unconscious. Since then, privacy and
confidentiality have been the cornerstones of the psychotherapeutic relationship." Gutierrez-
Lobos, et al., supra note 1.

28. Anna Freud, Sigmund Freud's daughter, is a renowned psychologist in the area of
developmental psychology of children. See LEFrON & VALVATNE, supra note 26, at 475-77.

29. Alfred Adler was heavily influenced by Sigmund Freud, and many psychologists
consider his theory an extension of Freud's. See id. Adler believed that social interaction is an
important factor that influences personality development. See id.

30. Viktor Franld developed what is generally known as the Third School of Viennese
Psychiatry, the school of logotherapy. See VITOR FRANKL, MAN'S SEARCH FOR MEANING:
AN INTRODUCTION TO LOGoTHERAPY (3rd ed. 1984). Logotherapy stresses man's freedom to
transcend suffering and find a meaning to his life regardless of his circumstances. See id.
Frankl's survival of concentration camps at Dachau and Auschwitz was the basis for his
formulation of the theory. See id.

31. Bundesgesetz vom 7. Juni 1990 iber die Austibung der Psychotherapie
(Psychotherapiegesetz) (199 1).

32. Id. § 15.
33. See Gutierrez-Lobos, et al., supra note 1.
34. See id
35. Bundesgesetz von 7. Juni 1990 Ober die Ausilbung der Psychotherapie

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IND. INT'L & COMP. L. REv.

deed meets the elements of a criminal offense.36 The Act is currently the only
law that provides for strict confidentiality by psychotherapists with no
exceptions.3"

The Act does, however, allow-but does not mandate-breach of
confidentiality in emergency situations.3"

In the case of the imminent threat of a criminal act involving
the life, physical integrity, or freedom of the victim, the
possible disadvantages as a result of the criminal act will
generally have precedence over the breach of confidentiality,
in which case the psychotherapist has a reporting obligation
protected by law. The danger must be direct or imminent,
and the occurrence of damage must be certain or highly
probable. Public interests (legal proceedings or the health
system in general) are not regarded as emergencies.3

In addition, breach of confidentiality is only allowed if other measures are
insufficient to prevent the act of violence.'

B. Rationale for the Act

The Austrian Constitution and the European Convention on Human
Rights protect personal privacy in general." This protection encompasses
individual privacy as well as the relationship with certain professionals such
as clergy, attorneys, physicians, and therapists.42 The Austrian Psychotherapy
Act furthers these rights to privacy.4 3 Professionals explain that the "duty of
confidentiality is intended to protect people who seek psychotherapeutic
treatment and accept the special and confidential relationship that this
involves."" The Act further "contributes to a clearly defined

(Psychotherapiegesetz) § 23 (1991). This penalty provision will likely be updated in January
2002 to include an amount of 3,634 Eurodollars instead of Austrian shillings. See Bundesgesetz
uber die Niederlassung und die Ausilbung des freien Dienstleistungsverkers von
Psychotherapeuten aus dem Europaischen Wirtschaftsraum (EWR-Psychotherapiegesetz) § 10
(1999). Three thousand six hundred and thirty-four Eurodollars is roughly equivalent to 50,000
Austrian schillings or 3,427 American dollars. See Expedia Currency Converter, available at
http://www.expedia.com/publagent.dll?qscr=curc (last visited Jan. 21, 2001).

36. See Bundesgesetz vom 7. Juni 1990 iber die Ausiibung der Psychotherapie
(Psychotherapiegesetz) § 23 (1991).

37. See Gutierrez-Lobos, et al., supra note 1.
38. See id.
39. Id.
40. See id. Examples of alternative measures include an increase in the frequency of

therapy sessions, drug treatment, hospital referral, or civil commitnent. See id.
41. See id.
42. See id.
43. See id.
44. Id.

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psychotherapeutic relationship, thus acknowledging the importance of
confidentiality for psychotherapy to be effective."45

C. Definition of "Psychotherapist" under the Act

The Act defines psychotherapy as:

the comprehensive, deliberate and planned treatment, on the
basis of a general and a special training, of disturbances in
behaviour and states of disease conditions, due to psycho-
social or also psycho-somatic causes, by means of scientific,
psychotherapeutic methods, in an interaction between one or
several treated persons and one or several psychotherapists,
with the objective of mitigating or eliminating the established
symptoms, to change disturbed patterns of behavior and
attitudes, and to promote a process of maturing, development
and sanity in the treated person.4

The Act applies to all individuals who complete the full psychotherapy
training as defined by the Act4 7 and those who engage in the listed activities
with a patient, regardless of their respective professions.4' Thus, social
workers, probation officers, and others may be protected by the Act.49 A
professional who may also be subject to other laws may find greater
protections under the Act.' Thus, a psychiatrist who qualifies under the law
as a psychotherapist and defines his relationship as psychotherapist-patient
rather than physician-patient is subject to the Act and not to the Austrian
Medical Practice Act (Osterreichisches Arztegesetz).5'

45. Id.
46. Bundesgesetz vom 7. Juni 1990 tiber die AusUbung der Psychotherapie

(Psychotherapiegesetz) § l(1) (1991).
47. See id. §§ 2-8.
48. See id. See also Gutierrez-Lobos, et al., supra note 1.
49. See Gutierrez-Lobos, et al., supra note 1.
50. See id.
51. See id. The authors point out that the Austrian Medical Practice Act, unlike the

Austrian Psychotherapy Act, includes reporting obligations when "there is a suspicion of a
punishable offense that has resulted in death or serious bodily harm, or if there is a suspicion
of torture or neglect of a minor, juvenile, or defenseless person, even where minor bodily harm
or health impairment results." Id. These exceptions to confidentiality are strictly governed:
"Disclosure may be required for criminal proceedings, to insurance companies (in the case of
specific, legally defined reporting obligations), or to government officials for certain diseases."
Id. See also Osterreichisches Arztegesetz §§ 26-27 (1994).

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IND. INT'L & COMP. L. REV.

D. Training Requirements & Prerequisites to Become a Psychotherapist

The Act specifies training requirements for psychotherapists."2 These
requirements include completion of a general preparatory instruction in
psychotherapy and special training in psychotherapy, taught in theory and in
practice. 3 The general training consists of a minimum of 765 hours of
instruction in a variety of basic principles' and 550 hours of practical
experience.5" The special training consists of a minimum of 300 hours of
instruction in a variety of areas,' with a minimum of 50 hours in one of the
priority areas provided under the Act.5 In addition, the special training
requires 1600 hours of practical experience, with a minimum of 100 hours in
one of the priority areas provided under the Act.58 The Act also sets forth
requirements for the training facilities.' In addition to these training
requirements, the Act sets forth prerequisites for training to become a
psychotherapist 6° and prerequisites for the independent exercise of

52. See Bundesgesetz vom 7. Juni 1990 uber die Ausuibung der Psychotherapie
(Psychotherapiegesetz) §§ 2-8 (1991).

53. See id. § 2.
54. Id. § 3(1). These basic principles include information regarding psychotherapy,

somatology and medicine, methodological principles of research and science, questions of
ethics, and framework conditions for the exercise of psychotherapy. See id.

55. Id. § 3(2). The practical instruction includes individual or group self-experience,
practical exercise in management of persons with behavior disturbances or with diseased
persons, and attendance at practical exercises in supervision. See id.

56. Id. § 6(1). The areas include the theory of sound and psychopathological personality
development, methods and techniques, personality and interaction theories, and
psychotherapeutic literature. See id.

57. Id.
58. Id. § 6(2). These subject areas include teaching therapy, teaching analysis, and

individual or group self-experience; practical psychotherapeutic knowledge gained from
relations with persons with behavioral disturbances or disease, under the supervision of a
psychotherapist; attendance at practical exercises with supervision; and psychotherapeutic
activity with persons with behavior disorders or diseases. See id.

59. See id. §§ 4, 5, 7, 8.
60. See id. § 10. The Act requires that persons seeking preparatory psychotherapy

training have legal capacity; have passed the completion examination of an upper-level
secondary school; have completed special training for the sick nursing services or the medical-
technical services; and have been admitted to attend preparatory psychotherapy instruction by
decree of the Federal Chancellor, on account of aptitude, after obtaining an expert opinion of
the Psychotherapy Advisory Council. See id. The Act requires that persons seeking special
psychotherapy training have legal capacity; be at least twenty-four years of age; submit a
written statement by a teaching facility that a training position will be available; have completed
the preparatory instruction in psychotherapy and either have completed special training for the
sick nursing services or the medical technical services, or have been admitted to attend special
training in psychotherapy by way of decree by the Federal Chancellor; have completed a
training course at an academy for social workers, a previous teaching institute for advanced
social occupations, an academy of pedagogy, or a teaching institute with public teaching
authorization for marriage and family counseling, or have completed the short study course in
music therapy or a university training course in music therapy; or have completed studies of
medicine, pegagogy, philosophy, psychology, publishing and communication science, theology,

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psychotherapy.6

E. Prison Psychotherapists

Psychotherapists who treat patients in institutions such as prisons are not
expressly mentioned in the Act.62 However, some Austrian practitioners
suggest that the Act protects even psychotherapists who treat inmates; thus,
these psychotherapists generally do not have a duty to protect third parties.63

The rationale for this inclusion is:

Offenders released from prison need to be able to talk freely
about their criminal intentions so that they can be prevented
from actually committing crimes. If this protection [of
confidentiality] were not granted, the therapist or probation
officer would become an informer rather than someone
capable of bringing about a change."4

However, the strict measure of confidentiality cannot realistically apply
where the offender's sentence is determined by his success in therapy.'
Despite this problem, many prison psychotherapists in Austria still invoke
their strict duty of confidentiality under the Act and refuse to give an opinion
as to whether authorities should change the conditions of detention. '

F. Psychotherapists Are Not Wimesses or Experts in Civil or
Criminal Trials

Under the Act, courts cannot compel Austrian psychotherapists to serve
as witnesses or experts in civil or criminal cases.67 In addition to the Act, the

or studies for the teaching profession at upper-level secondary school; or can prove completion
of a full study course at an officially-recognized international university. See id.

61. See id. § 11. The Act requires that persons who wish to be authorized to
independently practice psychotherapy shall have successfully completed the preparatory and
special instruction in psychotherapy, have legal capacity, be at least twenty-eight years of age,
have submitted evidence of their physical fitness and reliability as required to carry out
professional duties, and have been admitted to the List of Psychotherapists after the
Psychotherapy Advisory Council has been heard. See id.

62. See Bundesgesetz vor 7. Juni 1990 fiber die Auslibung der Psychotherapie
(Psychotherapiegesetz) (1991).

63. See Gutierrez-Lobos, et al., supra note 1.
64. Id.
65. See id. In Austria, the release of offenders adjudged to be responsible and mentally

disordered is conditioned upon the success of therapeutic measures. See id.
66. See id. This problem has led prison officials to circumvent the effects of the Act by

organizing their own treatment groups and social learning programs. See id.
67. See id. This limitation presumably stems from Section 15 of the Act. See

Bundesgesetz vor 7. Juni 1990 uber die Ausubung der Psychotherapie (Psychotherapiegesetz)
§ 15 (1991). See Gutierrez-Lobos, et al., supra note 1. In general, however, Austrian

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IND. INT'L & COMP. L. REV.

reporting obligation of therapists is limited by the Amendment to the Criminal
Procedure Act (Gesetzesmaterialen) of 1993." According to the Criminal
Procedure Act, reporting is not required if doing so would be detrimental to
the performance of an official duty, the effectiveness of which depends on a
personal trust relationship.' The Criminal Procedure Act encompasses the
work of psychosocial professions, i.e., social workers and probation officers,
within the arena of criminal proceedings.'

The Austrian Psychotherapy Act does not expressly clarify whether
patients themselves may release psychotherapists from the duty of
confidentiality.7  This question is disputed." However, it is generally
accepted that a patient's release is not binding on a psychotherapist. 3 "In a
leading case, the Austrian Supreme Court opined that the protective object of
the discretionary right to withhold testimony concerns the therapist-patient
relationship rather than the patient and that this right cannot, therefore, be
waived by the patient alone." 74 When a patient attempts to release this right,
the therapist must consider whether the patient has the ability to assess the
consequences of the release on the basis of medical rather than legal interests.75

In these situations, only the therapist can decide if disclosure would harm the
patient."

The rationale for limiting psychotherapists' testimony is not only to
protect the psychotherapist-patient relationship, but also because
psychotherapists are poorly suited to give legal testimony:

Clinical and forensic undertakings are dissimilar in that they
are directed at different (although overlapping) realities,
which they seek to understand in correspondingly different
ways. The process of psychotherapy is a search for meaning
more than for facts. The therapist accepts the patient's
narrative as representing an inner, personal reality .... In
court, therapists can describe only impressions,
countertransference reactions, and assumptions regarding the
underlying psychic conflicts. The truth emerging in therapy
is subjective and selective; its objective validity cannot be

physicians may be compelled to testify in criminal proceedings. See id.
68. See Gutierrez-Lobos, et al., supra note 1.
69. See id.
70. See id.
71. See iL
72. See id.
73. See id.
74. Id.
75. See id.
76. See id.

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THE AUSTRIAN PSYCHOTHERAPY ACT

assessed without data about external circumstances.
Psychotherapists, therefore, cannot produce proof in the legal
sense.

77

The Act does not differentiate between psychotherapists as fact witnesses or
as paid experts because the difference is not important-psychotherapists are
inadequate witnesses in either vein.7 8

G. Do Austrian Psychotherapists Have a Duty to Protect the
General Public?

Under the strict provisions of the Act, a breach of patient confidentiality
may be excusable in the case of a highly probable danger.79 However, the
"danger must be direct or imminent, and the occurrence of damage must be
certain or highly probable. °8 0 The Act does not regard public interests such as
legal proceedings or the health system in general as emergencies that merit
breach of patient confidentiality.8 However, some Austrian practitioners note
that, although Austrian law does not include an equivalent of the Tarasoffrule,
Austrian psychotherapists still have a duty to the general public. 2

IV. UNITED STATES

The United States, on the other hand, chose to create a duty of therapists
to warn potential victims when patients voice threats of serious bodily harm.83

The United States also prioritizes the well being of its children by requiring
psychotherapists and others to report child abuse.' In so choosing, the United
States places greater value on the right of the public to be protected from
dangerous persons.85 In addition, the United States uses mental health service
providers as fact witnesses and experts in trials.' The argument has been
made that the United States' exceptions threaten to swallow the confidentiality
rule.87

77. Id.
78. See id.
79. See id.
80. Id.
81. See id.
82. See id.
83. See Tarasoff, 551 P.2d at 339-40.
84. See John R. Murphy III, In the Wake of Tarasoff: Mediation & the Duty to Disclose,

35 CATH. U. L. REv. 209, 218 (1985).
85. See id.
86. See Merton, supra note 14, at 284-88.
87. "[T]he exceptions and implied waivers are so many and so broad that it is difficult to

postulate a case in which the privilege applies." Gutierrez-Lobos, et al., supra note 1.

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IND. INT'L & COMP. L. REv.

A. General Right of Patients to Confidentiality

In the United States, courts have held that a patient's right to
confidentiality stems from the Constitution."s Courts have cited the right to
privacy and right to receive treatment as constitutional bases for this
confidentiality right of patients.8 9 However, courts have held that this
confidentiality right is not absolute.90 In addition, the right inheres in the
patient; a psychotherapist may not override a patient's waiver of the privilege
to psychotherapeutic communication. 9'

The medical profession in the United States also acknowledges the value
of patient confidentiality. The American Code of Medical Ethics provides:

The information disclosed to a physician during the course of
the relationship between physician and patient is confidential
to the greatest possible degree. The patient should feel free
to make a full disclosure of information to the physician in
order that the physician may most effectively provide needed
services. The patient should be able to make this disclosure
with the knowledge that the physician will respect the
confidential nature of the communication. The physician
should not reveal confidential communications or information

88. See, e.g., Whalen v. Roe. 429 U.S. 589, 599-603 (1977) (discussing constitutional
right to privacy of patient information, but upholding statute against constitutional attack); Doe
v. City of New York, 15 F.3d 264, 269 (2d Cir. 1994) (holding that individuals have a
constitutional right of privacy in their medical information and that courts should apply a
balancing test to determine whether the government's interest in disclosure is substantial enough
to outweigh the privacy interest); Wyatt v. Stickney, 325 F.Supp. 781, 784 (M.D.Ala. 1971)
(discussing right to receive treatment); People v. Feagley, 535 P.2d 373, 386-87 (Cal. 1975)
(discussing constitutional right of involuntarily committed patients to receive treatment); In re
Lifschutz, 467 P.2d 557, 567-68 (Cal. 1970) (reasoning that the confidentiality of the
psychotherapeutic relationship falls within the zones of privacy created by the Bill of Rights,
as discussed in Griswold v. Connecticut, 381 U.S. 479 (1965)). See also Tarasoff, 551 P.2d at
347 (Mosk, J. dissenting) (suggesting that imposition of a duty to warn will increase the risk of
civil commitment of those who should not be confined, thus increasing the risk that the right
to personal liberty will be violated).

89. See, e.g., Wyatt, 325 F.Supp. at 784 (discussing right to receive treatment); Feagley,
535 P.2d at 386-87 (discussing constitutional right of involuntarily committed patients to
receive treatment); Lifschutz, 467 P.2d at 567-68 (reasoning that the confidentiality of the
psychotherapeutic relationship falls within the zones of privacy created by the Bill of Rights,
as discussed in Griswold v. Connecticut, 381 U.S. 479 (1965)).

90. See, e.g., Whalen, 429 U.S. at 602; Lifschutz, 467 P.2d at 568 (holding that not all
state interference with such confidentiality is prohibited).

91. See Lifschutz, 467 P.2d at 573 (rejecting psychotherapists claims that compulsion of
privileged information violated his right to privacy, constituted an unconstitutional taking of his
property right in his profession, unconstitutionally constricted the practice of medicine, and
denied him equal protection under the law); R.P. Davis, Annotation, Who May Waive Privilege
of Confidential Communication to Physician by Person Since Deceased, 97 A.L.R.2d 393
(1999) (noting that generally only the patient may waive privilege).

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THE AUSTRIAN PSYCHOTHERAPY ACT

without express consent of the patient, unless required to do
so by law.92

In addition, commentators suggest that breaches of confidentiality may
hinder a client's relationship with his therapist.93 Because the treatment of
potentially dangerous offenders, by its nature, encourages the disclosure of
violent fantasies, a duty to warn of these disclosures creates a quandary for
therapists. 94 In this vein, the Tarasoff court stated:

Certainly a therapist should not be encouraged routinely to
reveal such threats; such disclosures could seriously disrupt
the patient's relationship with his therapist and with the
persons threatened. To the contrary, the therapist's
obligations to his patient require that he not disclose a
confidence unless such disclosure is necessary to avert danger
to others, and even then that he do so discreetly, and in a
fashion that would preserve the privacy of his patient to the
fullest extent compatible with the prevention of the threatened
danger.95

Thus, the line between the need to disclose a threat and the need to maintain

patient confidentiality is a dim one, offering little guidance for therapists.9

B. Exceptions to Confidentiality

Although the United States recognizes the value of a patient's right to
confidentiality, it allows numerous exceptions to the right.97 The duty to warn
third parties of danger presented by patients and the duty to report child abuse
are among these exceptions. In addition, there are numerous exceptions to the
psychotherapist-patient privilege in court cases.

92. AMERICAN MEDICAL ASSOCIATION COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS,
CODE OF MEDICAL ETHICS § 5.05 (2000).

93. See Merton, supra note 14, at 306-08. In addition to this discussion, the author
addresses the possibility that disclosure of potential weaknesses of treatment will allow a deeper
trust in the professional relationship. See id. at 271.

94. See id. at 306-08.
95. Tarasoff, 551 P.2d at 347.
96. See Scott Rogge, M.D., J.D., Liability of Psychiatrists Under New York Law for

Failing to Identify Dangerous Patients, 20 PACE L REv. 221, 224 (2000).
97. See, e.g.. Robert Sadoff, Ethical Obligations for the Psychiatrist: Confidentiality.

Privilege, and Privacy in Psychiatric Treatment, 29 Loy. L.A. L. REv. 1709, 1710-11 (1996)
(noting that the privilege may be overcome by statutory exceptions or where necessary to
protect the public or a third party).

98. See id. See also ML R. EvID. 513. This military rule deals with the psychotherapist-
patient privilege in military tribunals and sets forth eight exceptions to the privilege: (1) when
the patient is dead; (2) when the communication involves evidence of spouse or child abuse, or

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IND. INT'L & COMP. L. REV.

C. Duty to Warn

Prior to Tarasoff, therapists were not held responsible for the violent acts
of their patients unless they had a special relationship with the patient or the
victim. This responsibility was generally limited to situations where the
"clinician had physical control or custody of the patient .... knew in advance

of the patient's violent intentions, and failed to exercise appropriate control."99

In other words, therapists "previously risked liability for negligently allowing
patients with violent histories and intentions to be released or to escape from

their custody and control when those patients later caused harm to other
people.""

However, in 1976, the status of the common law changed with the case

of Tarasoff v. Regents of University of California. ' This landmark case
established the duty to warn in the United States. t2 In Tarasoff, police officers
and therapists failed to warn a victim of a patient's intention to kill her.10 3 The

patient killed the victim. 4 The victim's parents filed suit against the police
officers and therapists for failure of their duty to warn the victim and failure
to confine the patient." 5 The court rejected all claims against the police
officers." The court also rejected the claim against the therapists for failure
to confine the patient. 7 However, the court held that the therapists' special
relationship with the patient transferred to the victim."° Therefore, the court
held, the therapists had a duty to use reasonable care in warning the victim of
danger." 9 In so holding, the court set forth the following rule:

neglect, or in a proceeding in which one spouse is charged with a crime against the person of
the other spouse or child of either spouse; (3) when there is a duty to report under federal or
state law, or service regulation; (4) when the service provider believes that the patient's mental
or emotional condition makes the patient a danger to any person, including the patient; (5) if the
communication clearly contemplates future commission of a fraud or crime, or if the services
of the provider were sought to aid the patient in such activity; (6) when necessary to insure the
safety and security of military personnel, military dependents, military property, classified
information, or accomplishment of a military mission; (7) when an accused offers statements
or evidence concerning his mental condition in defense, extenuation or mitigation, as necessary
in the interests of justice; and (8) when constitutionally required. See id. 513(c)(1)-(8).

99. Rogge, supra note 96, at 222. See also Tarasoff, 551 P.2d at 335.
100. Rogge, supra note 96, at 222. See also Tarasoff, 551 P.2d at 335.
101. See Tarasoff, 551 P.2d at 339-40.
102. See id.
103. See id. at 340.
104. See id. at 339.
105. See id. at 340.
106. See id. at 353.
107. See id at 351.
108. See id. at 344.
109. See id. at 340.

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THE AUSTRIAN PSYCHOTHERAPY ACT

When a therapist determines, or pursuant to the standards of
his profession should determine, that his patient presents a
serious danger of violence to another, he incurs an obligation
to use reasonable care to protect the intended victim against
such danger. The discharge of this duty may require the
therapist to take one or more of various steps, depending upon
the nature of the case. Thus it may call for him to warn the
intended victim or others likely to apprise the victim of the
danger, to notify the police, or to take whatever other steps
are reasonably necessary under the circumstances."'

The court went on to clarify a therapist's duty by stating that the
therapist must exercise "that reasonable degree of skill, knowledge, and care
ordinarily possessed and exercised by members of [that professional specialty]
under similar circumstances.""' Within this range, the court continued, "the
therapist is free to exercise his or her own best judgment without liability;
proof, aided by hindsight, that he or she judged wrongly is insufficient to
establish negligence."' 2 The standard used to determine the adequacy of the
therapist's conduct is the traditional negligence standard of reasonable care
under the circumstances. "

3

In the twenty-five years since the California Supreme Court decided
Tarasoff, more than twenty-five states have recognized the duty to warn, by
statute or case law."4  Other jurisdictions explicitly reject the Tarasoff
doctrine."' Still other courts have distinguished Tarasoff from certain factual
situations."' Yet another line of cases applies the Tarasoff doctrine to new

110. Id.
111. Id. at 345 (quoting Bardessono v. Michels, 478 P.2d 480 (Cal. 1970)).
112. Tarasoff, 551 P.2d at 345.
113. See id.
114. See Bradley v. Ray, 904 S.W.2d 302, 307-09 (Mo. Ct. App. 1995) (discussing the

status of Tarasoff legal developments nationwide). See, e.g., Almonte v. New York Med.
College, 851 F. Supp. 34 (D. Conn. 1994); Naidu v. Laird, 539 A.2d 1064, 1072 (Del. 1988)
(holding special relationship between mental health professional and patient supports duty to
take steps to protect third parties); Estates of Morgan v. Fairfield Family Counseling Ctr., 673
N.E.2d 1311, 1313 (Ohio 1997), reconsid. denied, 676 N.E.2d 534 (Ohio 1997); Hembree v.
State, 925 S.W.2d 513 (Tenn. 1996).

115. See, e.g., Green v. Ross, 691 So.2d 542,543-44 (Fla. Dist. Ct. App. 1997) (finding
that Florida legislature had not established a cause of action for failure to warn); Lee v.
Corregedore, 925 P.2d 324, 336-37 (Haw. 1996) (limiting the Tarasoff holding to cases
involving potential victims of violent assault, while declining to extend it to risks of self-
inflicted injury); Thapar v. Zezulka, 994 S.W.2d 635, 640 (Tex. 1999) (holding psychiatrist not
liable for death of third party killed by patient because psychiatrist had no duty to warn victim
and had duty to maintain patient's confidentiality); Nasser v. Parker, 455 S.E.2d 502, 502 (Va.
1995) (finding patient did not have special relationship with psychiatrist and hospital so
psychiatrist and hospital not liable for patient's murder of third party).

116. See, e.g., Riley v. United Health Care of Hardin, Inc., 165 F.3d 28, 1998 WL 598733,
**4 (6th Cir. 1998) (patient made non-specific threats); Boulanger v. Pol, 900 P.2d 823,834-35
(Kan. 1995) (holding psychiatrist had no duty to warn where the victim was already aware of

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IND. INT'L & COMP. L. REv.

situations, new classes of health providers, and other defendants who may be
held responsible for an individual's conduct.'"

In addition to changes in case law, states have changed confidentiality
and malpractice laws to limit, permit, or mandate the duty to warn." 8 These
statutes often include immunity from Tarasoff-type lawsuits in return." 9

Several states extend the duty to warn to new classes of professionals in new
situations. 2 ' For example, health care workers have a duty to warn third-party
contacts of risks of exposure to a patient's transmissible disease, such as
HIV/AIDS or active tuberculosis.' 2 ' Despite clarifying statutory or case law,
Tarasoff has "arguably become the de facto standard of care in the mental
health community."' 

22

The American Code of Medical Ethics incorporates the Tarasoff duty to
warn by suggesting that confidentiality, although important, is "subject to

the danger posed by the patient and because no special relationship existed between psychiatrist
and voluntary mental patient); Bishop v. South Carolina Dept. of Mental Health, 473 S.E.2d
814, 816 (S.C. App. 1996), ajf'd as modified, 502 S.E.2d 78 (S.C. 1998) (victim had prior
knowledge of the patient's dangerousness); Limon v. Gonzaba, 940 S.W.2d 236,241 (Tex. App.
1997) (victims neither identifiable nor foreseeable).

117. See, e.g., Garamella v. New York Med. College, 23 F. Supp.2d 167, 174 (D. Conn.
1998) (psychiatric resident's supervisor liable for failing to notify resident's medical school that
resident was a pedophile); Valentine v. On Target, Inc., 727 A.2d 947, 948 (Md. 1999) (holding
gun dealer owed no duty to third parties to exercise reasonable care in the display and sale of
handguns to prevent the theft and illegal use of handguns against third parties); Popple v. Rose,
573 N.W.2d 765 (Neb. 1998) (holding parents may be sued for failure to warn babysitter of
their son's known dangerous sexual propensities, but holding that son's dangerous sexual
propensities were not known in that case); J.S. v. R.T.H., 714 A.2d 924,936 (N.J. 1998) (spouse
may be held liable because she had reason to know of her husband's sexually abusive behavior
against neighbor's children yet did nothing to stop it); Ludlow v. City of Clifton, 702 A.2d 506,
509 (N.J. Super. Ct. 1997) (applying Tarasoff to suit against school board and child study team,
but holding defendants not liable because statutory discretionary duty fulfilled); Cain v. Rijken,
717 P.2d 140,140 (Or. 1986) (en banc) (mental health provider may be liable for failure to warn
of patient's inability to drive safely); Schuster v. Altenberg, 424 N.W.2d 159, 175 (Wis. 1988)
(recognizing duty of psychiatrist to inform police where patient exhibits generalized dangerous
tendencies, but no readily identifiable target); State v. Agacki, 595 N.W.2d 31, 38 (Wis. Ct.
App. 1999) (applying public safety exception to confidentiality although the threat was not
particularized). See also JAMES C. BECK, CONFIDENTIALITY VERSUS THE DUTY TO PROTECT:
FORESEEABLE HARM IN THE PRACTICE OF PSYCHIATRY (James C. Beck ed. 1990); LEON
VANDECREEK & SAMUEL KNAPP, TARASOFF AND BEYOND: LEGAL AND CLINICAL
CONSIDERATIONS IN THE TREATMENT OF LIFE-ENDANGERING PATIENTS (rev. ed. 1993). See
generally Michael L. Perlin, TarasoffattheMillennium: New Directions, New Defendants, New
Dangers, New Dilemmas, PSYCHIATRIC TIMEs, Nov. 1999.

118. See Rogge, supra note 96, at 225. See also CURRAN ET AL, HEALTH CARE LAW AND
ETHICS 193-99 (5th ed. 1998).

119. See, e.g., Hutchinson v. Patel, 637 So.2d 415, 418-19 (La. 1994). See generally
Michael R. Geske, Statutes Limiting Mental Health Professionals' Liability for the ViolentActs
of Their Patients, 64 IND. L.J. 391, 403 (1989).

120. See Geske, supra note 119, at 398-400.
121. See Lawrence 0. Gostin & James G. Hedge, Jr., Piercing the Veil of Secrecy in

HIV/AIDS and Other Sexually Transmitted Diseases: Theories of Privacy and Disclosure in
Partner Notification, 5 DUKE J. GENDER L. & POL'Y 9, 41-44 (1998).

122. Rogge, supra note 96, at 229.

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THE AUSTRIAN PSYCHOTHERAPY ACr

certain exceptions which are ethically and legally justified because of
overriding social considerations."' 23 Threat of serious harm to another is one
of these considerations:

Where a patient threatens to inflict serious bodily harm to
another person or to him or herself and there is a reasonable
probability that the patient may carry out the threat, the
physician should take reasonable precautions for the
protection of the intended victim, including notification of
law enforcement authorities. 24

The duty to warn exception has numerous proponents, both in the United
States and internationally. 25

Yet, the Tarasoff duty to warn has also been criticized because its
holding leaves several questions unanswered, thus offering little guidance to
therapists. 26 For instance, which threats are "serious and imminent"? If not
mentioned by name, when is a threatened victim "identifiable"? One author
recounts a case study that exemplifies the difficulty of victim identification.' 27

The case study involves a man who therapists found to be a general danger to
women.12' However, the therapists could not determine a particular woman or
group of women subject to the danger."2 Thus, the therapists could not

123. AMERICAN MEDICAL ASSOCIATION COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS,
CODE OF MEDICAL ETHics § 5.05 (2000).

124. Id.
125. See, e.g., Perreira v. State, 768 P.2d 1198, 1201 (Colo. 1989) (holding that there are

situations in which the need to protect an individual or the community from the threat of harm
from a patient may outweigh the strong policy in favor of non-disclosure of patient
confidences); Rocca v. Southern Hills Counseling Center, Inc., 671 N.E.2d 913, 917-19 (Ind.
Ct. App. 1996) (holding that, while free and frank communication should be promoted to aid
proper diagnosis and treatment, public policy supports disclosure of confidential information
when appropriate); Estates of Morgan, 673 N.E.2d at 1332 (held a psychotherapist liable for
failing to control a schizophrenic patient despite pleas of patient's parents when the patient
subsequently killed his parents); Emerich v. Philadelphia Center for Human Development, Inc.,
720 A.2d 1032, 1045 (Pa. 1999) (found a duty to warn in accord with Tarasoff, but found that
the mental health center had fulfilled its duty by warning the victim not to go to the patient's
apartment); Agacki, 595 N.W.2d at 38 (applying public safety exception to confidentiality
although the threat was not particularized); Charles E. Cantu, Bitter Medicine: A Critical Look
at the Mental Health Care Provider's Duty to Warn in Texas, 31 ST. MARY'S L. J. 359,379-405
(2000) (discussing Texas's rejection of the Tarasoff doctrine, and suggesting that the doctrine
should be adopted in Texas); Vittorio Fineschi, et al., The New Italian Code of Medical Ethics,
23 J. OF MED. ETHICS 239, 243 (1997) (suggesting that the new Italian Code of Medical Ethics
provides for an exception to patient confidentiality when there is potential for harm to a third
party); Dr. Thaddeus H. Jozefowicz, The Case Against Having "Professional Privilege" in the
Physician-Patient Relationship, 16 MED. & L. 385, 391 (1997) (arguing in favor of the trend
toward allowing exceptions to patient confidentiality rights in order to protect the public).

126. See McClarren, supra note 18, at 293.
127. See Dickinson, supra note 20, at 302.
128. See id.
129. See id.

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IND. INT'L & COMP. L. REv.

realistically fulfill the duty to warn.' 30 Another question unanswered by the
Tarasoff holding is what "reasonable steps" should a therapist take to protect
the threatened party. Exactly what are the "standards of the profession" by
which therapists are to measure their activity?.3'

D. Duty to Report Child Abuse

A duty to report child abuse exists to some degree in all fifty states.'32

The status of this duty in the psychotherapist-patient relationship is unclear.
Some courts have held that statutes requiring the reporting of actual or
suspected child abuse expressly make the psychotherapist-patient privilege
inapplicable. 33 However, other jurisdictions have completely nullified the
privilege." 4 These jurisdictions have protected therapists' discretion by
suggesting that the question of whether to disclose suspected child abuse is a
matter left to the individual therapist's professional and moral judgment. 35

E. Use of Mental Health Service Providers as Witnesses or
Expeits in Trials

The United States uses psychotherapists as fact witnesses and experts in
civil and criminal trials.'36 American courts rely upon mental health
professionals to predict offender dangerousness in sentencing hearings. ' In
addition, despite a general psychotherapist-patient evidentiary privilege, courts
may compel therapists to testify in a variety of situations. 3 " In Austria,

130. See id.
131. This problem was suggested in Tarasoff, 551 P.2d at 354 (Mosk, J., dissenting).
132. See Murphy, supra note 84, at 220.
133. See People v. Stritzinger, 668 P.2d 738, 742-45 (Cal. Ct. App. 1982).
134. See, e.g., Maryland Att'y Gen. Op., 1977 Md. AG LEXIS 107,9 (1977) (holding that

privilege applies despite child abuse reporting statute). See also Wisconsin Att'y Gen. Op. 10-
87, 1987 Wisc. AG LEXIS 60, 11 (1987) (holding that if a report is made in good faith, the
physician will be immune from civil or criminal liability).

135. See supra note 133.
136. See Merton, supra note 14, at 284-88. See also William M. Grove & R. Christopher

Barden, Protecting the Integrity of the Legal System: the Admissibility of Testimony from
Mental Health Experts Under Daubert/Kumho Analyses, 5 PSYCHOL PUB. POL'Y & L. 224,238
(1999) (suggesting that much expert testimony by mental health professionals should be
excluded under reigning case law).

137. See id.
138. See, e.g., In re Lifschutz, 467 P.2d 557, 561 (Cal. 1970) (holding that a litigant-patient

exception to the statutory psychotherapist-patient privilege does not unconstitutionally infringe
rights of privacy of either psychotherapists or their patients); Stritzinger, 668 P.2d at 742-45
(holding that a psychologist's testimony regarding patient's admission of sexual conduct was
not properly admitted since psychologist had previously fulfilled reporting obligation under
statute when he reported suspected child abuse based on communication from patient's child);
Ritt v. Ritt, 238 A.2d 196, 198-99 (N.J. Ct. App. 1967) (holding that communications between
plaintiff-wife and psychiatrist were not protected from disclosure and reasoning that the patient
only had a limited right to confidentiality, subject to exceptions created by supervening interests

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THE AUSTRIAN PSYCHOTHERAPY ACT

however, courts may not compel psychotherapists to testify in trials.'39 Even
if an Austrian patient waives his right to confidentiality, he may not do so
alone."40 The Act deems the psychotherapist-patient relationship an entity in
and of itself, so that one party may not waive the privilege without the
cooperation of the other party. 141

In 1996, the U.S. Supreme Court first recognized the psychotherapist-
patient privilege in Jaffee v. Redmond.142 In Jaffee, a police officer received
extensive counseling from a licensed clinical social worker after the police
officer shot and killed a man. 143 The family of the deceased brought suit
against the officer and wanted to compel disclosure of the content of the
therapy sessions."' The Court recognized the privilege under Federal Rule of
Evidence 501 .145 That Rule states, .... the privilege of a witness, person,
government, State, or political subdivision thereof shall be governed by the
principles of common law as they may be interpreted by the courts of the
United States in the light of reason and experience.""' The Court described
the common law principles underlying the recognition of testimonial
privileges:

For more than ... three centuries it has now been recognized
as a fundamental maxim that the public has a right to every
man's evidence. When we come to examine the various
claims of exemption, we start with the primary assumption
that there is a general duty to give what testimony one is
capable of giving, and that any exemptions which may exist
are distinctly exceptional, being so many derogations from a
positive general rule. Exceptions from the general rule

of society. Here, the supervening interest was the fact that institution of litigation by the patient
constituted vitiation of her right to absolute confidentiality), rev'd, 244 A.2d 497,499 (the New
Jersey Supreme Court held that the issue had been subsequently decided because the New
Jersey legislature had enacted a statute creating the physician-patient privilege that would cover
the psychiatric relationship here); AMERICAN MEDICAL ASSOCIATION COUNCIL ON ETHICAL
AND JUDICIAL AFFAIRS, CODE OF MEDICAL ETHICS § 5.06 (2000) (providing that physicians
may communicate with a patient-plaintiffs attorney with patient consent, and may testify in
court in any personal injury or related case); John C. Williams, J.D., Annotation, Liability of
One Treating Mentally Afflicted Patient for Failure to Warn or Protect Third Persons
Threatened by Patient, 83 A.L.R.3d 1201 (2000) (discussing state rules of evidence pertaining
to the physician-patient privilege).

139. See Gutierrez-Lobos, et al., supra note 1. Physicians in Austria, however, may be
compelled to testify. See id.

140. See id.
141. See id.
142. Jaffee v. Redmond, 116 S.Ct. 1923, 1930 (1996). The Court also extended the

privilege to include licensed social workers. See id. at 1931.
143. See id. at 1925.
144. See id.
145. See id. at 1930.
146. FED. R. EVID. 501.

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IND. INT'L & COMP. L. REv.

disfavoring testimonial privileges may be justified, however,
by a [']public good transcending the normally predominant
principle of utilizing all rational means for ascertaining the
truth. ['] 147

The Court then weighed the benefit of requiring testimony against the
benefit of allowing a psychotherapist-patient privilege. "* The Court noted that
the privilege serves the public interest by "facilitating the provision of
appropriate treatment for individuals suffering the effects of a mental or
emotional problem."' 49 The Court further reasoned

... the likely evidentiary benefit that would result from the
denial of the privilege is modest. If the privilege were
rejected, confidential conversations between psychotherapists
and their patients would surely be chilled, particularly when
it is obvious that the circumstances that give rise to the need
for treatment will probably result in litigation. Without a
privilege, much of the desirable evidence to which litigants
such as petitioner seek access-for example, admissions
against interest by a party-is unlikely to come into being.
This unspoken "evidence" will therefore serve no greater
truth-seeking function than if it had been spoken and
privileged."' °

In adopting the psychotherapist-patient privilege, the Court was
reassured by the fact that all fifty states and the District of Columbia had
enacted some form of the privilege.' 5' In adopting the rule, the Court further
rejected a case-by-case balancing of interests test, reasoning that making
confidentiality "contingent upon a trial judge's later evaluation of the relative
importance of the patient's interest in privacy and the evidentiary need for
disclosure would eviscerate the effectiveness of the privilege."'' 52

Justice Scalia dissented in Jaffee, arguing that application of the
privilege would create injustice, including loss of evidence of possible
wrongdoing. 53 Justice Scalia further questioned the psychotherapist's ability

147. Jaffee, 116 S.Ct. at 1928 (internal citations omitted). See also Kathleen J. Cerveny
& Marion J. Kent, Recent Decision: Evidence Law-The Psychotherapist.Patient Privilege in
Federal Courts, 59 NOTRE DAME L. REV. 791, 815-16 (1984) (advocating for a federal
psychotherapist-patient privilege and discussing the benefits of the privilege in light of the
court's need for evidence).

148. See Jaffee, 116 S.Ct. at 1929.
149. Id.
150. Id.
151. See id.
152. Id. at 1932.
153. Id. (Scalia, J., dissenting).

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to maintain the public's mental health.' In addition, Justice Scalia suggested
that fear of later litigation would not likely deter a patient from seeking
psychological counseling or being completely truthful to his therapist.'
Justice Scalia also thought it unjust that a patient could seek the benefit of
honesty in counseling and still have the benefit of dishonesty in court.'56

Finally, Justice Scalia took issue with the Court's extension of the privilege to
licensed social workers, arguing that such professionals are not as highly
skilled as psychotherapists." Therefore, urged Scalia, the Court should not
encourage consultation with a social worker to the extent it encourages
consultation with a psychotherapist.' s

Although the Supreme Court adopted a psychotherapist-patient privilege,
its limits are not clear.' s9 For instance, where a psychotherapist divulged
privileged information to prevent harm to a third party, but the third party is
harmed anyway, may a court then compel the psychotherapist to testify in a
civil or criminal proceeding after the harm has occurred?"6° In addition, the
privilege is subject to exceptions.' 6'

The American Medical Association Code of Medical Ethics also
recognizes that physicians may breach patient confidentiality for litigation

154. See id. at 1934.
155. See id.
156. See id. at 1935. However, it could also be argued that persons who seek help for their

mental distress should not be punished for doing so. In Justice Scalia's scenario, the person
who seeks aid for his problem would be treated worse in court than the person who did not seek
help. See id.

157. See id. at 1937.
158. See id.
159. See George C. Harris, The Dangerous Patient Exception to the Psychotherapist-

Patient Privilege: The TarasoffDuty and the Jaffee Footnote, 74 WASH. L. REv. 33,33 (1999).
160. See id. The author suggests that, although mental health professionals should be

compelled to testify in restraining order proceedings or hearings regarding involuntary
commitment of dangerous patients, the professionals should not be compelled to testify against
their patients after the threat has been carried out because public policy safety concerns are not
met by breaching the privilege once the threat has been fulfilled. See id.

161. See Jaffee, 116 S.Ct. at 1923. See also In re Lifschutz, 467 P.2d 557, 561 (Cal. 1970)
(holding that a litigant-patient exception to the statutory psychotherapist-patient privilege does
not unconstitutionally infringe rights of privacy of either psychotherapists or their patients);
People v. Stritzinger, 668 P.2d 738, 742-45 (Cal. Ct. App. 1982) (holding that a psychologist's
testimony regarding patient's admission of sexual conduct was not properly admitted since
psychologist had previously fulfilled statutory reporting requirement by reporting suspected
child abuse based on communication from patient's child); Ritt v. Ritt, 238 A.2d 196, 198-99
(N.J. Ct. App. 1967) (holding that communications between plaintiff-wife and psychiatrist were
not protected from disclosure during depositions, and reasoning that the patient only had a
limited right to confidentiality, subject to exceptions created by supervening interests of society.
Here, the supervening interest was the fact that institution of litigation by the patient constituted
vitiation of her right to absolute confidentiality), rev'd, 244 A.2d 497, 499 (the New Jersey
Supreme Court held that the issue had been subsequently decided because the New Jersey
legislature had enacted a statute creating the physician-patient privilege that would cover the
psychiatric relationship here).

2001]



IND. INT'L & COMP. L. REv.

purposes.'62 The Code provides that physicians may communicate with a
patient-plaintiff's attorney with patient consent or may testify in court in any
personal injury or related case.6

V. COMPARISON OF AuSTRIAN AND AMERICAN LAWS

Austria places great emphasis on confidentiality as a tool to encourage
open discourse within treatment.'" But is it really possible to know why a
patient would not tell a psychotherapist about a violent tendency? Perhaps he
did not trust his psychotherapist, perhaps he did not premeditate the act, or
perhaps he was unwilling to share his fantasy. These inherent problems in
measuring the subjective state of patients make it difficult to measure the
relative success of the Austrian and United States programs. However,
discussion of the two different systems in light of several concerns offers some
insight.

A. Ability of Psychotherapists to Accurately Predict
Dangerous Behavior

A major concern relating to psychotherapists' treatment of dangerous
patients is lack of ability to accurately predict dangerous behavior. 65 The
United States addresses this issue by erring on the side of caution and
requiring psychotherapists to break confidentiality when serious bodily injury
to a third person is probable. 66 Austria addresses the problem by giving
psychotherapists the discretion to determine whether or not they must take
action to avert injury to a third party. 67 However, Austrian professionals
concede that psychotherapists are incapable of offering reliable evidence for

162. AMERicAN MEDICAL ASSOCIATION COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS,

CODE OF MEDICAL ETHICS § 5.06 (2000). This is not unlike Austrian law, wherein physicians
may be compelled to testify. See Gutierrez-Lobos, et al., supra note 1. However, physicians
who are also covered by the Austrian Psychotherapy Act may not be compelled to testify. See
id.

163. AMERICAN MEDICAL ASSOCIATION COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS,
CODE OF MEDICAL ETHICS § 5.06 (2000).

164. See Gutierrez-Lobos, et al., supra note I.
165. See People v. Burnick, 535 P.2d 352,365 (Cal. 1975). The Court in Bumick suggests

that psychiatric predictions of violence are inherently unreliable. See id. See also Hill, supra
note 20, at 137-38 (discussing a case in which prediction of dangerousness was especially
problematic); Kane & Sigel, supra note 20, at 75-78 (addressing the difficulty in predicting
dangerousness and suggesting that evaluations are often inconsistent due to different approaches
to examinations, different methodologies followed, and different perspectives in collecting and
interpreting data); Merton, supra note 14, at 296-301 (discussing in depth the difficulty of
predicting dangerousness); Weiss, supra note 20 (suggesting a particular assessment method
to more accurately assess inmate dangerousness, but conceding that accurate assessment of
dangerousness is difficult).

166. See Tarasoff, 551 P.2d at 339-40.
167. See Gutierrez-Lobos, et al., supra note 1.

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THE AusTRiAN PSYCHOTHERAPY ACT

court proceedings, thus courts should not call them as fact or expert
witnesses."

Courts and commentators have criticized the American Tarasoff rule
largely because it depends upon therapists' ability to predict dangerousness:

[']In the light of recent studies it is no longer heresy to
question the reliability of psychiatric predictions.
Psychiatrists themselves would be the first to admit that
however desirable an infallible crystal ball might be, it is not
among the tools of their profession. It must be conceded that
psychiatrists still experience considerable difficulty in
confidently and accurately diagnosing mental illness. Yet
those difficulties are multiplied manyfold when psychiatrists
venture from diagnosis to prognosis and undertake to predict
the consequences of such illness[.']. . . Predictions of
dangerous behavior, no matter who makes them, are
incredibly inaccurate, and there is a growing consensus that
psychiatrists are not uniquely qualified to predict dangerous
behavior and are, in fact, less accurate in their predictions
than other professionals.69

Judge Mosk went on to state that a duty to warn "will take us from the world
of reality into the wonderland of clairvoyance.""17

Judge Mosk's prediction is not without support. For example, one
psychiatrist recounts a case that exemplifies the difficulty of predicting
dangerousness. 7' The case involved a man with severe depression who
admitted himself to a psychiatric hospital in September, 1998.171 On
admission, the man claimed that he had, several years before, sexually abused
several children and his pet dog. '73 He further claimed a continuing urge to go
after children. 74 Unfortunately, the day after admission, the man was
missing.'75 The psychiatrist explains the hospital's quandary:

At this stage, we had no clear evidence on which to assess
whether he was a child abuser or not. It was decided initially
to inform the police that our patient had absconded, was
considered to be a risk to himself, and should be returned to

168. See id.
169. Tarasoff, 551 P.2d at 354 (quoting People v. Burnick, 535 P.2d 352 (Cal. 1975);

Murel v. Baltimore City Criminal Court, 407 U.S. 355, 364-65 (1972)) (emphasis in original).
170. Tarasoff, 551 P.2d at 354 (Mosk, J., dissenting).
171. See Hill, supra note 20, at 137-38.
172. See id.
173. See id.
174. See id.
175. See id.

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IND. INT'L & COMP. L. REv.

the ward urgently. It was decided not (at least initially) to
discuss his statements about the historical child abuse. In
fact, he returned to the ward before it was felt necessary to
inform the police.'

Upon his return, the man said he no longer had sexual desire for children
but still admitted to previously abusing childrea and his pet dog.'" Still, the
psychiatric staff did not know if these claims were true or were merely
delusions of a man seriously depressed. 7 ' An investigation revealed that
neither the police nor social services knew the man, and no complaint had ever
been filed against him. The man provided some specific information about
the abuse but refused to provide names of any of his claimed victims."8

Despite the lack of concrete evidence of the man's potential danger to society,
the psychiatrist decided that the "duty to protect the public from possible risk
was sufficient [enough] that [he] had to involve other agencies."'' Thus, the
psychiatrist disclosed the potential risk to personnel of various social service
and police agencies.' 2 Interestingly, the psychiatrist was able to do so with
the man's consent.8

3

Another problem with prediction of dangerousness is that evaluations are
often inconsistent due to different approaches to examinations, different
methodologies followed, and different perspectives in collecting and
interpreting data. '" The case of Texas psychiatrist James Grigson is indicative
of this problem.' Grigson has been nicknamed "Dr. Death" because he has
deemed every criminal defendant he has interviewed a danger to society. 6

176. Id.
177. See id.
178. See id.
179. See id.
180. See id.
181. Id.
182. See id.
183. See id. There is no suggestion, however, that patient consent to disclosure under these

circumstances is the norm. See id.
184. See Kane & Sigel, supra note 20, at 75-78 (addressing the difficulty in predicting

dangerousness and suggesting that evaluations are often inconsistent due to different approaches
to examinations, different methodologies followed, and different perspectives in collecting and
interpreting data). See also People v. Burnick, 535 P.2d 352, 365 (Cal. 1975) (suggesting that
psychiatric predictions of violence are inherently unreliable); Grove & Barden, supra note 136,
at 238 (suggesting that even standardized criteria such as Rorschach tests and disorders listed
in the DIAGNOSTIC AND STATISTICAL MANUAL IV would fail to meet the current reliability
standards for expert testimony).

185. See Merton, supra note 14, at 287. The author suggests that "[it was the profession's
willingness to accept attribution of peculiar expertise in predicting future conduct that landed
psychiatrists in the Tarasoff quandary." Id. at 288.

186. See id. at 287.

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THE AUSTRIAN PSYCHOTHERAPY ACT

The result of each determination was a death sentence for the criminal
defendant.5 7

In essence, the U.S. rule holds psychotherapists liable for a task they
admittedly cannot perform.' The Tarasoff court disputed this point:

We recognize the difficulty that a therapist encounters in
attempting to forecast whether a patient presents a serious
danger of violence. Obviously, we do not require that the
therapist, in making that determination, render a perfect
performance; the therapist need only exercise that
[']reasonable degree of skill, knowledge, and care ordinarily
possessed and exercised by members of [that professional
specialty] under similar circumstances.['] 9

However, it is not entirely clear that all therapists exercise equal degrees of
skill, knowledge, and care under similar circumstances.'" In addition, despite
problems inherent to prediction, American courts rely upon therapists'
predictions of dangerousness when sentencing offenders.' 9 '

Austria, on the other hand, does not hold psychotherapists liable 'for
failing to warn third parties based upon predictions of dangerousness.'92 It
does, however, give psychotherapists the discretion to warn third parties in
cases of imminent danger.'93 Austria does not utilize psychotherapists as
expert witnesses due to the difference between therapeutic reality and forensic
reality.' 94

1. Encouragement of Open Discourse Within Treatment

Both the United States and Austria recognize the importance of
encouraging open discourse in the treatment relationship:'95

187. See id.
188. See Tarasoff, 551 P.2d at 344-45.
189. Id. at 345 (quoting Bardessano v. Michels, 478 P.2d 480 (Cal. 1970)).
190. See Kane & Sigel, supra note 20, at 75-78. The authors address the difficulty in

predicting dangerousness and suggest that evaluations are often inconsistent due to different
approaches to examinations, different methodologies followed, and different perspectives in
collecting and interpreting data. See id.

191. See Merton, supra note 14, at 284-88.
192. See Bundesgesetz vom 7. Juni 1990 Uiber die Austibung der Psychotherapie

(Psychotherapiegesetz) § 23 (1991); Gutierrez-Lobos, et al., supra note 1.
193. See Gutierrez-Lobos, et al., supra note 1.
194. See id.
195. See In re Lifschutz, 467 P.2d 557, 567-68 (Cal. 1970); AMERICAN MEDICAL

ASSOCIATION COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, CODE OF MEDICAL ETics § 5.05
(2000); Cerveny & Kent, supra note 147, at 796-99; Gutierrez-Lobos, et al., supra note 1.

20011



IND. INT'L & COMP. L. REV.

[']The psychiatric patient confides more utterly than anyone
else in the world. He exposes to the therapist not only what
his words directly express; he lays bare his entire self, his
dreams, his fantasies, his sins, and his shame. Most patients
who undergo psychotherapy know that this is what will be
expected of them, and that they cannot get help except on that
condition.[ ] It would be too much to expect them to do so if
they knew that all they say-and all that the psychiatrist
learns from what they say-may be revealed to the whole
world from a witness stand.[']

However, Austria more strongly encourages this openness. 97  The
Austrian Psychotherapy Act' provides for patient confidentiality with no
exceptions.' The Act allows Austrian psychotherapists to warn third parties
of the danger posed by patients if no other measures will avert the danger but
does not require psychotherapists to do so.2° In addition, the Act provides that
courts may not compel psychotherapists to testify as fact or expert witnesses
in civil or criminal trials.20'

The United States, on the other hand, requires psychotherapists to protect
third parties from danger posed by patients, through disclosure of privileged
communications if necessary.2 2  The United States also utilizes
psychotherapists as experts in civil and criminal trials and allows
psychotherapists to act as fact witnesses in some situations.0 3 Because the

196. Lifschutz, 467 P.2d at 567 (quoting Taylor v. United States, 222 F.2d 398,401 (U.S.
App. D.C. 1955)).

197. See Gutierrez-Lobos, et al., supra note 1.
198. Bundesgesetz vom 7. Juni 1990 fiber die Ausilbung der Psychotherapie

(Psychotherapiegesetz) (1991).
199. See Gutierrez-Lobos, et al., supra note 1.
200. See id.
201. See id.
202. See Tarasoff, 551 P.2d at 339-40.
203. See, e.g., Lifschutz, 467 P.2d at 561 (holding that a litigant-patient exception to the

statutory psychotherapist-patient privilege does not unconstitutionally infringe rights of privacy
of either psychotherapists or their patients); People v. Stritzinger, 668 P.2d 738, 742-45 (Cal.
Ct. App. 1982) (holding that a psychologist's testimony regarding patient's admission of sexual
conduct was not properly admitted since the psychologist had previously fulfilled a statutory
reporting requirement by reporting suspected child abuse based on communication from
patient's child); Ritt v. Ritt, 238 A.2d 196, 198-99 (N.J. Ct. App. 1967) (holding that
communications between plaintiff-wife and psychiatrist were not protected from disclosure and
reasoning that the patient only had a limited right to confidentiality, subject to exceptions
created by supervening interests of society. Here, the supervening interest was the fact that
institution of litigation by the patient constituted vitiation of her right to absolute
confidentiality), rev'd, 244 A.2d 497, 499 (the New Jersey Supreme Court held that the issue
had been subsequently decided because the New Jersey legislature had enacted a statute creating
the physician-patient privilege that would cover the psychiatric relationship here); AMERICAN
MEDICAL ASSOCIATION COUNCIL ON ETHICAL AND JUDICLAL AFFAIRS, CODE OF MEDICAL
ETICS § 5.06 (2000) (providing that physicians may communicate with a patient-plaintiff's

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THE AUSTRIAN PSYCHOTHERAPY ACT

United States allows more exceptions to patient confidentiality, one may argue
that patients in the .United States are not as likely to engage in open discourse
during treatment.2 4

2. HIVIAIDS Infected Patients

An additional concern relating to confidentiality and treatment of
dangerous persons involves HIV/AIDS-infected patients.0 5 Unfortunately,
some HIV-positive individuals may knowingly engage in conduct likely to
spread the virus. Patients with HIV could foreseeably tell their therapists
about this conduct. Do the therapists then have a duty to warn the potential
victims? On one hand, the disclosure of the contagious disease to public
health authorities and/or third parties in danger of transmission may curb the
spread of the deadly virus.2"u On the other hand, patients may avoid testing if
they know the results will be disclosed.20 7

In the United States, jurisdictions are not in agreement concerning the
duty to warn of HIV transmission.0 8 Some states impose a duty to protect by

attorney with patient consent, and may testify in court in any personal injury or related case).
204. See Gutierrez-Lobos, et al., supra note 1. See also David R. Katner, The Ethical

Dilemma Awaiting Counsel Who Represent Adolescents with HIV/AIDS: Criminal Law and
Tort Suits Pressure Counsel to Breach the Confidentiality of the Clients' Medical Status, 70
TuL. L. REV. 2311, 2338-39 (1996) (suggesting that the attorney-client relationship may be
hindered by informing client of limitations on right to confidentiality).

205. See generally Agnello, supra note 6. See also Carmody, supra note 12, at 107-08
(suggesting that mandatory notification programs are not as effective as voluntary notification
programs in the prevention of the spread of HIV because mandatory notification programs may
deter people from getting HIV testing done, therefore separating them from medical treatment
that could prevent the spread of the disease); Doughty, supra note 12, at 122-28 (emphasizing
the importance of confidentiality for HIV-infected patients); Fineschi, et al., supra note 125, at
243 (indicating that the new Italian Code suggests that there is a duty to inform partners or
family of a patient's HIV- positive status despite the fact that this duty is directly counter to a
1990 Italian law that specifically prohibited the revelation to third parties of a patient's HIV
infection); Bernard Friedland, HIV Confidentiality and the Right to Warn: the Health Care
Provider's Dilemma, 80 MAss. L. REv. 3, 3 (1995) (examining the belief of health care
providers that they have an ethical obligation to warn partners of HIV-positive patients);
Kenneth E. Labowitz, Beyond Tarasoff: AIDS and the Obligation to Breach Confidentiality, 9
ST. Louis U. PUB. L. REV. 495, 517 (1990) (concluding that health care providers have a duty
to breach confidentiality in order to curb the spread of HIV).

206. See Agnello, supra note 6, at 115 (suggesting that HIV should be disclosed through
contact tracing for the protection of third parties); Fineschi, et al., supra note 125, at 243
(indicating that the new Italian Code suggests that doctors have a duty to inform partners or
family of a patient's HIV-positive status in order to protect these third parties); Friedland, supra
note 205, at 3 (examining the belief of health care providers that they have an ethical obligation
to warn partners of HIV-positive patients); Labowitz, supra note 205, at 517 (concluding that
health care providers have a duty to breach confidentiality in order to curb the spread of HIV).

207. See Carmody, supra note 12, at 107-08. See also Doughty, supra note 12, at 122-28
(emphasizing the importance of confidentiality for HIV-infected patients).

208. See Agnello, supra note 6, at 111. See generally Paul Barron, et al., State Statutes
Dealing with HIV and AIDS: a Comprehensive State-by-State Summary, 5 L. & SEXuALTY 1
(1995) (discussing state statutes regarding reporting of HIV and AIDS).

2001]



IND. INT'L & COMP. L. REv.

requiring physicians to report the disease to public health authorities or
persons at risk of transmission.2' Other states allow an exception to the duty
of confidentiality by authorizing disclosure when necessary to prevent
foreseeable danger.2"' Still other states prohibit disclosure to third parties
absent consent of the patient. T ' However, all states mandate reporting of
AIDS and other communicable diseases to public health officials." ' In
addition, many states implement contact tracing programs to curb the spread
of the disease." 3

The American Medical Association Code of Medical Ethics recognizes
the importance of reporting HIV status."1 4 Section 2.23 of the Code provides
for exceptions to patient confidentiality "when necessary to protect the public
health or when necessary to protect individuals[.]"J 2t The section sets forth
steps a physician should take before notification of the third party occurs."1 6

In Austria, physicians are required to report information regarding AIDS,
but psychotherapists are not. The Austrian Medical Practice Act

209. See Agnello, supra note 6, at 111. See also Christine E. Stenger, Taking Tarasoff
Where No One Has Gone Before: Looking at "Duty to Warn" Under the AIDS Crisis, 15 ST.
Louis U. PUB. L. Rev. 471, 490-504 (1996) (discussing the duty to warn third parties of
potential HIV infection in terms of the Tarasoffrule and setting forth guidelines for physicians);
Labowitz, supra note 204, at 517 (concluding that health care providers have a duty to breach
confidentiality in order to curb the spread of IV); Tracy A. Bateman, J.D., Annotation,
Liability of Doctoror Other Health Practitioner to Third Party Contracting Contagious Disease
from Doctor's Patient, 3 A.L.R.5th 370 (2000) (noting that courts have recognized liability of
doctors to persons infected by a patient if the doctor negligently fails to diagnose contagious
disease or for failing to warn third parties who have a foreseeable risk of exposure to the
disease).

210. See Agnello, supra note 6, at 111.
211. See id. See also Annotation, State Statutes or Regulations Expressly Governing

Disclosure of Fact that Person has Tested Positive for Human Immunodeficiency Virus (HIV)
or Acquired Immunodeficiency Syndrome (AIDS), 12 A.L.R.5th 149 (2000) (noting that
information believed to be particularly sensitive or prone to misuse should receive additional
protection from disclosure).

212. See id. See also Hermann & Gagliano, supra note 13, at 56.
213. See Agnello, supra note 6, at 112. 'Contact tracing is a system of notification

designed to prevent further transmission of communicable diseases by alerting those who have
been exposed to an infected person. It is used in conjunction with reporting procedures and is
carried out by public health officials." Id. at 112. For further discussion of contact tracing and
other public health strategies, see CURRAN ET AL, supra note 118, at 903-26 and 964-1005. See
also Carmody, supra note 12, at 124 (pointing out that all fifty states have implemented some
form of HIV partner notification program).

214. See AMERICAN MEDICALASSOCIATION COUNCILONETHICALANDJUDICIAL AFFAIRS,
CODE OF MEDICAL ETHIcs § 2.23 (2000) (dealing specifically with HIV testing). See also
Friedland, supra note 205, at 3 (examining the belief of health care providers that they have an
ethical obligation to warn partners of HIV-positive patients).

215. AMERICAN MEDICAL ASSOCIATION COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS,
CODE OF MEDICAL ETHICS § 2.23 (2000).

216. See id. The Code provides that "the physician should, within the constraints of the
law: (1) attempt to persuade the infected patient to cease endangering the third party; (2) if
persuasion fails, notify authorities; and (3) if the authorities take no action, notify the
endangered third party." Id.

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THE AUSTRIAN PSYCHOTHERAPY ACT

(Osterreichisches Arztegesetz), unlike the Austrian Psychotherapy Act,
includes reporting obligations when "there is a suspicion of a punishable
offense that has resulted in death or serious bodily harm, or if there is a
suspicion of torture or neglect of a minor, juvenile, or defenseless person, even
where minor bodily harm or health impairment results."2 7 The Act strictly
governs these exceptions to confidentiality: "Disclosure may be required for
criminal proceedings, to insurance companies (in the case of specific, legally
defined reporting obligations), or to government officials for certain
diseases."2 8  However, a psychiatrist who qualifies under the law as a
psychotherapist, and who defines his relationship as psychotherapist-patient
rather than physician-patient, is subject to the Act and not to the Austrian
Medical Practice Act.2"9 Thus, a psychotherapist who discovers a patient's
seropositivity through therapy presumably has no legal duty to disclose this
information.22°

3. Use/Non-Use of Psychotherapists as Witnesses/Experts in Trials

In Austria, courts may not compel psychotherapists to testify as
witnesses or experts in civil or criminal trials.22' In the United States,
therapists all too often find themselves taking an oath to testify in court. Thus,
in Austria the judicial system may be deprived of relevant information.
However, in America, "junk science" runs rampant-litigants can find a
therapist to testify as an expert on virtually anything. As a result,
psychotherapy in Austria has perhaps retained more of its dignity than has
psychotherapy in the United States. However, the Austrian psychotherapeutic
system has surmounted the Austrian judicial system.222

Further, in Austria, the patient alone may not waive the psychotherapist-
patient privilege. 23 However, in the United States, the patient may himself
waive the privilege.2 The California Supreme Court has stated:

We do not believe the patient-psychotherapist privilege
should be frozen into the rigidity of absolutism. So extreme
a conclusion neither harmonizes with the expressed
legislative intent nor finds a clear source in constitutional law.
Such an application would lock the patient into a vice which

217. Gutierrez-Lobos, et al., supra note 1. See also Osterreichisches Arztegesetz §§ 26-27
(1994).

218. Gutierrez-Lobos, et al., supra note 1.
219. See id.
220. See id.
221. See id.
222. See id.
223. See id.
224. See In re Lifschutz, 467 P.2d 557, 567-73 (Cal. 1970); Davis, supra note 91.

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IND. INT'L & COMP. L. REv.

would prevent him from waiving the privilege without the
psychotherapist's consent.2"

Also unlike the United States, Austria deems psychotherapists poorly
suited to give any legal testimony. 26 Thus, Austria does not differentiate
between psychotherapists as fact witnesses or as paid experts because the
difference is not important-psychotherapists are inadequate witnesses either
way.

227

4. "Junk Science" vs. Integrity of the Profession?

One may argue that Austrian psychotherapists have retained more
integrity than have psychotherapists in the United States. Commentators
suggest that courts should not rely upon therapists as experts because they are
incompetent to act in that capacity.228  In addition, critics have disparaged
American mental health professionals for offering forensic assistance.29 Even
American Judge David Bazelon has campaigned against courts' undue reliance
on technical expertise, psychiatric and otherwise.230

5. Should the Judicial System Receive All Relevant Information or Is the
Patient Right to Confidentiality More Important?

Both the United States and Austria recognize a psychotherapist-patient
privilege.23' Thus, each system sees the importance of patient confidentiality.
However, the Austrian privilege is more absolute than the American
privilege.232 In Austria, a patient alone may not waive the privilege.233 The
psychotherapist-patient relationship is viewed as an independent entity.3

Thus, one party to the relationship cannot waive the privilege without the

225. Lifschutz, 467 P.2d at 573.
226. See supra note 77 and accompanying text.
227. See id.
228. See id. See also Merton, supra note 14, at 296-301.
229. See supra notes 185-87 and accompanying text. See also Grove & Barden, supra note

136, at 238 (suggesting that expert witnesses have an ethical duty to tell the court and opposing
counsel when their methods do not meet requisite reliability standards, and that failure to do so
brings the profession into disrepute).

230. See Merton, supra note 14, at 272-73. See also People v. Burnick, 535 P.2d 352, 365
(Cal. 1975) (en banc) (suggesting that psychiatric predictions of violence are inherently
unreliable); Grove & Barden, supra note 136, at 238 (suggesting that even standardized criteria
such as Rorschach tests and disorders listed in the DIAGNOsTIC AND STATISTICAL MANUAL IV
would fail to meet the current reliability standards for expert testimony).

231. See Jaffee v. Redmond, 116 S.Ct. 1923, 1932 (1996); Gutierrez-Lobos, et al., supra
note 1.

232. See Gutierrez-Lobos, et al., supra note 1.
233. See id.
234. See id.

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THE AUSTRIAN PSYCHOTHERAPY ACT

cooperation of the other party.23 In addition, Austrian courts may not compel
psychotherapists to testify as fact or expert witnesses.236

In the United States, however, a patient may waive the psychotherapist-
patient privilege without the consent of his psychotherapist.237  Unlike in
Austria, a psychotherapist may not override the patient's waiver of the
privilege.238 In at least one American case, a court has imprisoned a
psychotherapist for refusing to divulge privileged information despite a court
order to do so." In In re Lifschutz, the court held that "the historically
important state interest of facilitating the ascertainment of truth in connection
with legal proceedings" may outweigh a patient's confidentiality interest.2 °

This result is inconceivable under Austrian law.24 "Competent Austrian
authorities do not know of any case in which a psychotherapist has been
prosecuted as an accomplice to a crime for failing to breach confidentiality."242

The Austrian system also avoids the potential for role conflicts of the
treating psychotherapist. 3 Psychotherapists, because they are not compelled
to testify, are not forced to wear two hats or act as double agents in court. 2"

In the United States, however, a psychotherapist may act in his professional
capacity to help a patient, but a court may then compel the psychotherapist to
speak against his patient in court because of this professional capacity.

In addition, courts may compel American therapists to testify in a variety
of situations despite the privilege.24 This becomes especially problematic if

235. See id.
236. See id.
237. See In re Lifschutz, 467 P.2d 557, 558 (Cal. 1970).
238. See id.
239. See id.
240. Id. at 568. It should be noted, however, that the exception compelled information

only in cases in which the patient's own action initiated the exposure, so intrusion into the
patient's privacy remained essentially under the patient's control. See id. Thus, the intrusion
was constitutional. See id.

241. See Gutierrez-Lobos, et al., supra note 1.
242. Id.
243. See id.
244. See id.
245. See, e.g., In re Lifschutz, 467 P.2d 557, 561 (Cal. 1970) (holding that a litigant-patient

exception to the statutory psychotherapist-patient privilege does not unconstitutionally infringe
rights of privacy of either psychotherapists or their patients); People v. Stritzinger, 668 P.2d
738, 742-45 (Cal. Ct. App. 1982) (holding that a psychologist's testimony regarding patient's
admission of sexual conduct was not properly admitted since psychologist had previously
fulfilled a statutory reporting requirement by reporting suspected child abuse based on
communication from the patient's child); Ritt v. Ritt, 238 A.2d 196, 198-99 (N.J. Ct. App.
1967) (holding that communications between plaintiff-wife and psychiatrist were not protected
from disclosure and reasoning that the patient only had a limited right to confidentiality, subject
to exceptions created by supervening interests of society. Here, the supervening interest was
the fact that institution of litigation by the patient constituted vitiation of her right to absolute
confidentiality), rev'd, 244 A.2d 497, 499 (the New Jersey Supreme Court held that the issue
had been subsequently decided because the New Jersey legislature had enacted a statute creating
the physician-patient privilege that would cover the psychiatric relationship here); AMERICAN
MEDICAL ASSOCIATION CouNcIL ON ETICAL AND JuDtciAL AFFAIRS, CODE OF MEDICAL

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IND. INT'L & COMP. L. REV.

psychiatrists are subject to suit based upon disclosures made during
testimony.2' One author suggests that a negative side effect of the Tarasoff
decision is to discourage therapists from testifying on behalf of their patients
in criminal trials because their testimony can then be used against the
therapists in civil trials.2 47 Because therapists may be concerned about their
own liability, the author argues, they will be less likely to aid patients through
testimony. 4

6. Willingness of Psychotherapists to Treat or Assist Violent Patients

A further question to be addressed relates to psychotherapists'
willingness to treat violent patients. Does the Austrian Psychotherapist Act
encourage or discourage therapists from taking on dangerous patients?
Likewise, does the United States statutory and common law positively or
negatively affect therapists' decisions to treat violent patients?

Several commentators suggest that inconsistent and indefinite liability
will lead to a shortage of providers willing to treat dangerous patients.249 One
practitioner suggests that the "possibility that external pressure [due to
potential ethical and legal ramifications] on the therapist to disclose such
information may be successful will result in mistrust by patients and caution
by therapists, to the extent of reluctance to treat clients of this type."210

Reverse Tarasoff cases exacerbate the quandary of therapists. In one
such case, Oringer v. Rotkin,25 the therapist issued a warning and was then
sued by the patient for breaching confidentiality.25 2  The court granted

ETHICS § 5.06 (2000) (providing that physicians may communicate with a patient-plaintiff's
attorney with patient consent, and may testify in court in any personal injury or related case).
But see In re Rules Adoption, 540 A.2d 212, 217-18 (N.J. Ct. App. 1988) (invalidating several
portions of the Department of Corrections regulations concerning exceptions to privileged
communications between psychologist and inmates because the regulations permitted disclosure
of confidences that did not present clear and imminent danger to the inmate or others, or failed
to identify any intended victim).

246. See Merton, supra note 14, at 322-25.
247. See id.
248. See id.
249. See Almason, supra note 18, at 495. The author argues against extension of the

Tarasoffrule to include personal liability of therapists who fail to discharge their duty to warn,
noting that excessive and inconsistent liability will lead to a scarcity of health care providers
willing to treat violent patients. See id. See also Hermann & Gagliano, supra note 13, at 69
(suggesting that allowing a jury to decide the issue of predictability of dangerousness leads to
uncertainty for therapists, who may then be deterred from treating dangerous patients);
McClarren, supra note 18, at 284 (suggesting that the inconsistency in legislation setting forth
requirements regarding psychotherapists' duty to warn may lead psychotherapists to refuse to
treat patients who are believed to be potentially dangerous); Merton, supra note 14, at 311
(suggesting that therapists will be discouraged from treating potentially dangerous patients).

250. Gutierrez-Lobos, et al., supra note I (citing H. Gurevitz, TarasoffProtective Privilege
Versus Public Peril, 139 AM. J. PSYCHIATRY 289-92 (1977)).

251. Oringer v. Rotkin, 556 N.Y.S.2d 67 (1st Dept. 1990).
252. See id. at 68.

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summary judgment for the therapist because the therapist fit within the
statutory Tarasoff exception and had followed the statute's procedures in
making the disclosure. 3 This case does not assist those therapists who do not
fit within the statutory exception.2m

7. Willingness of Patients to Seek Treatment

Along similar lines, what impact do the American and Austrian laws
have on patients' willingness to seek the help of therapists? Both Austrian and
American practitioners suspect that lack of patient confidentiality will
discourage patients from seeking treatment.25 Some commentators agree that
lack of confidentiality has this deterrent effect.2 However, others question
this suggestion. 7 Some empirical evidence suggests that people still seek care
from physicians or therapists without the protection of confidentiality.258 This
evidence, albeit scant, shows that the suspicions of Austrian and American
practitioners may be mistaken.

B. Ramifications of Laws: Remedy for Victims?

Because the Austrian Psychotherapy Act creates no duty of
psychotherapists to warn third parties of impending danger,259 victims are left
with no remedy in Austria. In the United States, however, victims have an
available remedy.2e Austrian practitioners suggest that the lack of a Tarasoff
rule, in combination with the Act, results in a reduced amount of related
litigation in Austria.26' Thus, court dockets are less crowded and can more

253. See id.
254. See Rogge, supra note 96, at 228.
255. See Tarasoff, 551 P.2d at 359 (Clark, J., dissenting). See also Gutierrez-Lobos, et al.,

supra note 1 (suggesting that lack of confidentiality will hinder the psychotherapeutic process).
256. See Tarasoff, 551 P.2d at 359 (Clark, J., dissenting). See also Carmody, supra note

12, at 135 (suggesting that mandatory disclosure of HIV seropositivity will deter potential
patients from being tested and receiving treatment necessary to curb the spread ofthe disease);
Doughty, supra note 12, at 165 (suggesting that the stigma and potential discriminatory effects
surrounding HIV seropositivity will deter patients from being tested and receiving treatment).
But see Tarasoff, 551 P.2d at 346 (arguing that such predictions are entirely speculative).

257. See Tarasoff, 551 P.2d at 346 (arguing that such predictions are entirely speculative).
See also Jaffee v. Redmond, 116 S.Ct. 1923, 1932 (1996) (Scalia, J., dissenting).

258. See Daniel J. Shuman, The Origins of the Physician-Patient Privilege and
Professional Secret, 39 Sw. L. J. 661,664-65 (1985). See also Daniel W. Shuman & Myron
F. Weiner, The Privilege Study: An Empirical Examination of the Psychotherapist-Patient
Privilege, 60 N.C. L. REV. 893.924-25 (1982) (discussing the impact of the privilege on patient
behavior); Myron F. Weiner & Daniel W. Shuman, The Privilege Study, 40 ARCHIVES GEN.
PSYCHIATRY 1027, 1030 (1983).

259. See Gutierrez-Lobos, et al., supra note 1.
260. Potential remedies may include monetary damages or revocation of a mental health

provider's license.
261. See Gutierrez-Lobos, et al., supra note 1.

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quickly entertain cases involving other types of victims. In addition, Austrian
psychotherapists are not deterred from treating dangerous patients for fear of
being held liable later.262 Therefore, it can be argued, dangerous persons are
better able to receive treatment, in turn reducing the number of victims of these
dangerous persons. Thus, the need for remedies in Austria may be lessened
because its treatment system is more successful.

VI. PROPOSAL

A. America Should Look to Austria for Guidance: Disclosure of
Dangerousness Should Remain Discretionary Rather than Mandatory

Austria has chosen the better standard for disclosure of dangerousness
and has enforced it consistently. The American system is inconsistent in its
rules and enforcement. 2 3 Thus, American psychotherapists are left in a
quagmire of uncertainty.2 "6 By establishing a consistent rule, the legislature
will protect the public interest in treating and rehabilitating the mentally ill.265

Another reason for a discretionary rule is that psychotherapists are
unable to accurately predict dangerous behavior.266 Courts should therefore
not hold psychotherapists liable for a task that they cannot perform. It makes
no sense to ask an untrained jury to decide whether a particular danger was
predictable when a trained professional, intimately knowledgeable about his
patient, is unable to do so.

Along these same lines, courts should not compel psychotherapists to
testify in civil or criminal cases. The natures of therapy and court proceedings
are not interchangeable:

Clinical and forensic undertakings are dissimilar in that they
are directed at different (although overlapping) realities,
which they seek to understand in correspondingly different
ways. The process of psychotherapy is a search for meaning
more than for facts. The therapist accepts the patient's

262. See id.
263. See McClarren, supra note 18, at 293.
264. See Rogge, supra note 96, at 229.
265. See McClarren, supra note 18, at 293.
266. See People v. Burnick, 535 P.2d 352,365 (Cal. 1975) (en banc). See also Hill, supra

note 20, at 137-38 (discussing a case in which prediction of dangerousness was especially
problematic); Kane & Sigel, supra note 20, at 75-78 (addressing the difficulty in predicting
dangerousness and suggesting that evaluations are often inconsistent due to different approaches
to examinations, different methodologies followed, and different perspectives in collecting and
interpreting data); Merton, supra note 14, at 296-301 (discussing in depth the difficulty of
predicting dangerousness); Weiss, supra note 20 (suggesting a particular assessment method
to more accurately assess inmate dangerousness, but conceding that accurate assessment of
dangerousness is difficult).

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narrative as representing an inner, personal reality. ... In
court, therapists can describe only impressions,
countertransference reactions, and assumptions regarding the
underlying psychic conflicts. The truth emerging in therapy
is subjective and selective; its objective validity cannot be
assessed without data about external circumstances.
Psychotherapists, therefore, cannot produce proof in the legal
sense.

267

Thus, courts and legislatures should construe the psychotherapist-patient
privilege recognized by the U.S. Supreme Court in Jaffee v. Redmond"
broadly, like the psychotherapist-patient privilege in Austria.

However, courts should not extend the psychotherapist-patient privilege
recognized in Jaffee to include social workers and others untrained in the
traditional psychotherapeutic areas.269 Austria's privilege is read broadly
because the Austrian Psychotherapy Act sets forth stringent training
requirements for anyone who is to claim the protection of the Act.270 The
United States should also require a minimum level of training for the
psychotherapists subject to the privilege.

A consistent American scheme will lead to additional benefits. First, a
consistent privilege encourages more open discourse within treatment. 27' In
addition, a consistent privilege increases the integrity of the psychotherapeutic
profession because the public will no longer view psychotherapists as double
agents.- Psychotherapists will also be more willing to treat dangerous
patients under a consistent system.273 Patients will likewise be encouraged to
seek treatment, assured that their disclosures will remain confidential. 4 Each
of these added benefits increases the success of psychotherapy and, in turn,
contributes to the public health.

B. Disclosure of HIV Seropositivity Should Be Mandatory Because It Is
More Readily Definable Than Human Dangerousness

Physicians can readily identify HIV through medical testing. In addition,
the HIV virus is inherently dangerous to humans. However, psychotherapists
are not as readily able to predict human behavior.275 In addition, the
psychotherapist-patient privilege is

267. Gutierrez-Lobos, et al., supra note 1.
268. Jaffee v. Redmond, 116 S.Ct. 1923 (1996).
269. See id. at 1937 (Scalia, J., dissenting).
270. See supra notes 52-61 and accompanying text.
271. See supra notes 195-204 and accompanying text.
272. See supra notes 228-30 and accompanying text.
273. See supra notes 249-54 and accompanying text.
274. See supra notes 255-57 and accompanying text.
275. See supra notes 165-94 and accompanying text.

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"rooted in the imperative need for confidence and trust."
Treatment by a physician for physical ailments can often
proceed successfully on the basis of a physical examination,
objective information supplied by the patient, and the results
of diagnostic tests. Effective psychotherapy, by contrast,
depends upon an atmosphere of confidence and trust in which
the patient is willing to make a frank and complete disclosure
of facts, emotions, memories, and fears. Because of the
sensitive nature of the problems for which individuals consult
psychotherapists, disclosure of confidential communications
made during counseling sessions may cause embarrassment
or disgrace. For this reason, the mere possibility of disclosure
may impede development of the confidential relationship
necessary for successful treatment.276

Thus, courts and legislatures should not hold psychotherapists to the same duty
to warn as physicians.

In Austria, authorities require physicians to report contagious diseases.27

However, if a patient discloses his HIV seropositivity to a physician who is
covered by the Austrian Psychotherapy Act, that physician has no duty to
report the HIV status because it was obtained within a psychotherapist-patient
relationship and is thus subject to the psychotherapist-patient privilege.27

Because HIV seropositivity is medically ascertainable and is often
deadly, this information should not be privileged in the United States.2 79 The
United States should mandate disclosure of HIV seropositivity by
psychotherapists to public health authorities."o The public health authorities
can then implement partner notification or contact tracing programs to curb the
spread of the disease.28" ' Because courts and legislatures should mandate the

276. Jaffee v. Redmond, 116 S.Ct. 1923, 1928 (internal citations omitted).
277. See Gutierrez-Lobos, et al., supra note 1.
278. See id.
279. See generally Fineschi, et al., supra note 125 (indicating that the new Italian Code of

Medical Ethics suggests that there is a duty to inform partners or family of a patient's HIV-
positive status, although this duty is directly counter to a 1990 Italian law that specifically
prohibited the revelation to third parties of a patient's HIV infection).

280. But see Hermann & Gagliano, supra note 13, at 74 (asserting the desirability of
providing therapists with discretionary authority to warn spouses or sexual partners, rather than
fixing mandatory duty to warn and pointing out that therapists may not inquire into dangerous
activities if there is a mandatory duty).

281. See Agnello, supra note 6, at 112. The author suggests that HIV should be disclosed
through contact tracing for protection of third parties and argues that "[t]he mortal fate awaiting
unsuspecting spouses and their unborn children cannot be justified by a policy calculated to
preserve the confidentiality and privacy of the individual who is infected. The focus must be
on the sanctity of human life." Id. at 117. "An individual's privacy is paramount, but human
life is sacred." Id. at 122.

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disclosure of this information, psychotherapists should inform patients of this
limitation on confidentiality at the outset of treatment. 2

VII. CONCLUSION

The United States should follow the leader in the field of psychotherapy.
Like the Austrian Psychotherapy Act, American law should make duty to warn
third parties of dangerous patients discretionary instead of mandatory. Such
a law would eliminate much confusion, uncertainty, and litigation in America.
The United States should, however, mandate disclosure of HIV seropositivity
to public health officials. Each of these measures is in the interest of public
health.

Dana J. Kenworthy"

282. See Merton, supra note 14, at 271. The author notes that informing the patient of the
potential need to disclose information may actually strengthen the trust relationship between
the patient and therapist. See id.

* J.D., 2001, Indiana University School of Law-Indianapolis; B.A., 1998, Ball State
University. The author would like to thank Karen Gutierrez-Lobos and Bruce Kleinschmidt for
their generous research assistance, and her husband, Alex, for his unconditional love and
support. The author would also like to dedicate this work to her mother, Flossie Cantrell, who
is her role model and eternal source of inspiration.

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