reliance upon the psychotherapist obligation and duty to warn if in fact a determination is made surrounding concerns of imminent harm and that can only be burden by notifying the third person is which the harm is directed action this person will continue to be a very serious serious things that are the real wide ban on the notion of involuntary commitment as the way of restraint instead of being subject to a criminal process well i would and the reason being is that in this type of situations with mr chase really individual who is suffering from a mental disease or defect that is the manner of the method in which we attempt to assist these individuals the criminal process the restraint well that's the competing interest i would agree it is that aspect of the problem and it is that i would say that i don't know of a situation in which the familiar a person can be were stained basically indefinitely or threat of harm to themselves or to others or property and so i'm not sure what circumstance would exist where that type of procedure would not be appropriate as opposed to the criminal involuntary commitment so you would not be appropriate district court here found it in that it would not be appropriate would not be sufficient here i'm sorry didn't the district court make such a finding here where the judge did make such a find in this particular case based upon the circumstances would you have a voluntary summation if you voluntarily submit yourself to the medical personnel you can also volunteer early would draw yourself from that particular situation we didn't have a situation here where the involuntary commitment process it was  situation like this and also take into consideration jaffe and the cases that have dealt with that particular circumstance or the psycho therapist patient privilege and and how far it extends under those circumstances if you have an allow solely that that the doctors make a determination that involuntarily commit involuntary commit a process doesn't apply therefore you can go ahead and see criminal prosecution there's a a problem with that in a situation where  information the the evidence is being presented against the individual and that which was privileged and believed to be privileged during the communication between the patient to the client now the if the court makes the finding that the involuntary commitment process was not appropriate respectfully i don't believe that based upon the information that was permitted presented there in the in the trial below that there was sufficient evidence for that the reason i say that is because dr schiff was the i mean because in the reason being is that as opposed to seeking that type of guidance from her supervisors which she indicated before that she talked with her lead supervisor at the at the hospital kinds of permanente she privilege the privilege is for therapeutic purposes in order to get people to talk to the doctor so it strikes me as very hard to see the point of preserving the privilege once you've allowed the doctor to to talk the object of the threat confidentiality is already gone though the therapeutic benefit is why preserve the privilege well the reason being is that they're still there you still have the competing interest in the he's court ma that you need to be discreet so as not to give up any more information than is necessary in their duty to warn the individual well that's a california state case and rule five zero one says that this is a matter of federal court and i understand that but but do everything you tell me as well i think there's there's there is a difference between what is to be provided to the patient in the sense there's a duty to warn and what the therapist obligation is for treating the patient and there they are differing interests in the he scored again makes reference to that that there may be off there may be a duty to warn the individual but that is that is apart from the obligation to testify against your client or your patient in a criminal proceeding and it doesn't and it doesn't connect the two circumstances where there's a duty to warn we oftentimes have situations to where a person in most folks would or not most many would suggest that any time a person could commit a crim  act there is some type mental health issue that would cause the person to act in that fashion but just because a person makes a comment that a therapist believes it's necessary or requires the therapist to make a determination that they should warrant that client what the parameters are for purposes of dealing with this type of a serious threat if in fact the serious or the threat is something that is not just serious but is an imminent threat and that's what's significant council government makes an alternative argument that in this case your client waived the privilege in a variety of ways the application for benefits based on mental condition what is your response to the arguments concerning  in a partial sure there are there are many cases that are starting to deal with that issue after that after the jack the court came out and there's a different variety of ways in which which we take a look at the waiver a waiver as we know needs to be knowing involuntary waiver particularly in the workplace if a person in some of the cases that were cited the materials talk about that if the person is submitting themselves to a in evaluation in the workplace underneath the we're not going to say that that waves the privilege don't think there's i don't think that waves would nor should it waive the idea that you are still going to have the a psychotherapist patient privilege during those circumstances if it does then if if that were to be the case then there would be absolutely threats that were made to dr dieter that were submitted for any mental health professional to obtain benefits there's nothing in the record that suggests that typically typically when you make a request for benefits and you see a spade a psychologist or a mental health professional what is what is provided are the results such as the person suffers from schizophrenia or they suffer from bipolar disorder but the the background information in my experience is not provided along with the findings and so under those circumstances they might say well this is what the person suffers from but the background information is not something that is necessarily going to be provided or discovered i'm trying to understand it here position as an all or nothing  is that the privilege would never give way in terms of compelling testimony in a criminal trial i don't think it ever can't i simply don't think it can i think that and that's why i think the hayes court is pervasive or persuasive for the other reason that i that if some yes that is the way that the jack the court's decision has been expanded in jaffrey remember was a civil case that dealt with the one thousand nine hundred three action dealing with a licensed mental health professional or a license social worker there are other cases within the northern district of california that i cited the material that that reference that even on licensed sole shall workers would still have the cycle therapist patient privilege well if you start to expand what is covered under those circumstances then any time you have a situation where person believes whether the trains run trains specifically they can disclose that information in the hayes court makes this let's take it a step further if we you go and you seek the therapist seeks the involuntary commitment however subsequent court hearing determines that the patient doesn't meet the wreck with the criteria for involuntary commitment so now they're successful that she needs to tell the secret service or the f b i again so she goes back and does that are you basically kind of like on the hamster track her back and forth on that topic or is there at some point where the privilege would give way and other words the public interest would start to move in there that the only way to actually and even this would be through an arrest process them well we without conceding that th the problem that i have with that and that we have a collectively is that where is it that you draw the line in the sense of what is it is to be disclosed you could you could say that well we will recognize the danger patient dangerous patient exception to notify third person but but in this particular case we're completely over the top it wasn't just a situation of notifying she became an agent of the f b i she provided information that was a basis for a search in the person would not be released and that's what the community is of the it's all here a commitment from is that indeed it isn't voluntary and we are relying upon a trained professional to make a determination as opposed yes coun office well the difference is that is that i would say i would assert that in this situation where there's been in the psalter a samples or physical type crimes that that are acts the in this particular case what we're what we're trying to determine is the mental state of the individual as to whether or not the threats were reasonable that's the difference between the two and under the circumstances that were a lot i don't care i thought that the mental state that the statute spoke of was inten as opposed to not meaning uninclined meaningful intent for example any type of an individual who or say he was was housed in the mental health institution could say that i'm going to kill the president well that is a threat that is being made but it would be reasonable to expect that a person who has actually no means whatsoever is committing a crime even though under the circumstance of the statute as it's written that would be a crime so i would i would assert that in this situation we need to take a look at the context which the statements made there's a there's a tremendous difference when you are hoping that a person such as mr chase position it's vetting his expressions that they have need they will be there to and we want to encourage that as opposed to not getting these expressions and something horrible happening that's the problem that's the difference i believe between these two situations mr parker how do you deal with the specific language of the california evidence code section one zero two four which appears to me to define the scope of this analyst patient privilege and it says when when the patient is dangerous to himself or to another person and the disclosure of a communication is necessary to prevent the threatening injury stretton danger since there is no privilege so i mean if there is no privilege and as i understood your argument you seemed almost to concede that the threat could be warned you could warn the subject of the threat if that's true and you can warn the subject of the threat then why isn't it the case that under this code there's no privilege and so then you can march into court and testify well one that's legislated as opposed to common law that's the one difference between the california code and in what we have and with respect to jaffe the other is with respect to what the intention is  and i if that's likely in your case what is the basis for the privilege that you're asserting is that california law or is it some other law in this case that would be well we're relying upon the federal law goal primarily in the criminal arena as punishment in your example there may be some ideas that we can that we can get realty but in this situation dealing with a mental health facility the goal is to is to rehabilitate and to treat the individual so we can make them and put them back in the mainstream of society that is not necessarily the same goal that we have in the in the in the criminal justice system it's primarily to punish instead of after the fallen before your time runs i want to get a sense of the scope of your p the privilege only gives way for a narrow thing which is you can say you know we think there's a threat we think there's a concern here's what it is your view is even that limited testimony could not be introduced to be a question which in my assessment go to the heart of the issue in this case and really p s hayes is a very able and decision not only inconsistent with general percolates law which you know hornbook sense says watch there's an exception to the privilege you know there's no reason to bar the testimony that wouldn't be but it's not that the interest in protecting a targeted individual automatic leave to stay there for now you're going through this person  privileged life in general i don't know if there is any perhaps there are instances and which we only have the privilege that for lack of a the patient who's making the disclosure and waiving the privilege of theft which is the suggestion i agree with here's a person who has received the information and i believe the thrust of the was to protect that person again therapy is a passage of ingredient in society to treat mentally ill people however all privileges have exceptions and in this instance when the patient become significantly threatening immediately threatening and as a practical matter the only means to protect typically un third persons which was true in this case people who didn't even know that they were in danger as early as a week after this was finally disclosed  i'm not sure of the it's the proper concept but the reality is that our mental health system has collapsed and here we have an individual what is that what are you trying to convey well i what i am conveying is that the beds available for involuntary commitment the actions are sparse but don't you think that someone who  a long time trader was that this individual he was i guess you would call him a functional like a functioning mentally ill if he were making that same argument after a civil commitment hearing or a court had said this is the situation with mr chase instead we have a unilateral disclosure which albeit made in good faith applicable where you hear of an immediate serious threat where the only practical means of dealing with this individual is through disclosure to warn third time the search warrant that indicated among other things that he had hired a private investor gaiter to find the home address for than attorney who was anna's hitlist a week before individual was on the break could be acting out and see if he set a deadline if things don't go my way in court next tuesday i'm going to go and hear of my form of justice and all the people on this list including the which was essentially the test that was adapted in this case you know virtually from the language of the footnote nineteen in the supreme court decision so you get a glass  at my house dr dieter who realized by then the meter had become a full fledged criminal matter fortunately put agent mcmullan and notice just a couple of minutes before everything that the patient told you produce all the records you began by saying it's an absolute black hole why are you saying that once you violate once a privilege there's an exception you have a right to get into all the records or just the matters communicate  we definitely are of the belief that it needs to be restrictively applied to pertain to only meanders relevant to the threat presumably that would be subject to whether you know  germane to the thread and it's all that does that include information not communicate to third party well could yes i mean in other words you're telling the third parties i think the way law enforcement generally works in this situation third parties or county acted to advise them that they're in law enforcement assessment then it's a serious threat against their and the government's casting of the concept as a waiver they preferred the concept of forfeiture in the context of an application for benefits  private insurance company and through social security under a psychiatric disability  again the court meaning the district court was very careful and that giving the government the access to all of their information and my memory of the proceedings below is judge those records to know but i doubt that he would've had mid it does frex i think there was a general anger issue that is is there anything in the record  again i didn't have the access and i don't believe the government here the access to the full insurance company records but dr dieter testified and i believe the initial proceedings  prior to trial the evidence very ruling proceedings that she was required to periodic leaf provide information to the insurance company who of course would be interested as to whether or not they had to continue to pay seventy five there are both the district court and circuit around the country on this issue and really far out oh yes i was hoping through my filing of the supplemental authority in a state survey correct but one of the reasons i describe it is to never ration is not just in the context of the psychiatric privilege the psychotherapist patient privilege but in privilege line general can we publicly again and disallow testimony well obviously hayes but we could and chose to limit it now the miller case out of oregon and i realized that state law decision but miller i'm not sure miller was ever again after it was decided it was it was that was quite unnecessary to the opinion because in the end particular case so i think we need to go back to when the crime was committed which was a threat that was imminent a threat that was serious a threat that could only be averted by means of disclosure so you're saying th said i have seen a list that includes personal information concerning these targets of his frets which he showed me so based  threat was indeed serious and that's what was done in this case and that was followed up by further interviews most of which took place down in this area  virtue of mr chases prior business being down here in which a series of a series of people and this hit list their target list were  n helped provide objective indicators that this was a threat that was worth taking seriously that that only just obliterates the idea that a person suffering from some type of a mental illness can receive treatment and provide into the therapist and speak freely to that individual well i want to focus on the question you him not on what's the harm from it but what is this really the only way to address the problem and what concerns me here is that we're leaving not with an i thing the individual target is not a johnson if you can go warn  talked about having seen this long list of names she didn't know who was on those she wouldn't know how to contact some of the people what's the practical alternative for her at that point well the involuntarily commit involuntary commitment process is always available to me but then we go back to the question i asked some time ago which is that basically says to the district court you're wrong in the determination that's an acceptable alternative and that may be a valid point for you but suppose it's taken an instance where it's not available for some reason do we have a situation if there is no other alternative do we have an exception to the privilege the i don't think so to be could be if you're willing to accept the harm to be suffered by that person because there's no other year the list here is civil commitment is the alternative awful district judge concluded that wasn't available you're saying you disagree with that judgment we should disagree with that judgment but if he's right is there anything else that that's available to try to protect the people who've been threatened  if if that's all that happened we probably wouldn't be here because if in fact it was just a situation for alerting the the f b i or law enforcement that would probably fall in within something that we could all except him be consistent with what we understand the tarasoff talks to us about but that's not what she did she became an agent for the f b i and started to stare out information for purposes of prosecuting room client