This piece, recently posted to SSRN, suggests that the obligations to disclose under the Tarasoff case caused an increase in homicide (presumably by disincentivizing treatment of the most at-risk patients):
GRIFFIN SIMS EDWARDS, Emory University, Department of Economics
The effect of state duty to warn laws inspired by Tarasoff v Regents has been debated for decades. Required reporting of patient threats to the authorities and potential victims gives incentive to the mental health professional to not meet with the most at risk patients, or at very least make the current state of the law abundantly clear to the patient as to suggest suppression of the most at risk statements leaving the psychologist in liability-free ignorance to the true mental state of the patient. As a result, the mental help needed to treat the patient may be foregone and violence may ensue. Exploiting the variation in the timing and style of duty to warn laws across states, I use a fixed effects model to find that, all else equal and controlling for the prevalence of crack, mandatory duty to warn laws cause an increase in homicides of 9.5% or 0.83 people per 100,000. These results are robust to model specifications, falsification tests, and help to clarify the true, albeit unintended, affect of state duty to warn laws.
The ancient, common law privileges of preist-penitent, doctor-patient, lawyer-client, wife-husband, etc. all are based upon the recognition that the social benefit of confidentiality outweighs any social benefit from the lack of it. Social isolation can lead people to poor choices. For sensitive issues, people will not share their concerns with others if they can reasonably fear being reported to the government. It's a shame that in recent decades this ancient wisdom of the courts has been corroded and diminished by legislative changes. Yes - there is a cost, but on balance it is better to provide safe harbors for individuals to seek help with their troubles.
Posted by: Minneapoliscriminallawyer | 03/05/2010 at 09:59 AM