People soften what they say in therapy because they fear the phone call. The statute that governs the phone call is short, and its trigger is narrower than most people think — and wider in one respect they do not expect.
The short answer: only if you communicate "a serious threat of physical violence against a reasonably identifiable victim or victims."¹ That is the whole trigger. California's statute frees a psychotherapist from liability "in failing to protect from a patient's threatened violent behavior or failing to predict and protect from a patient's violent behavior except if the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims."¹ When that happens, the therapist "discharges his or her duty to protect by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency."¹ The statute does not define "serious"; in practice therapists look for specificity — a named person, a plan, a means — but that is clinical judgment, not statutory text. Two consequences follow that most people never hear about. Since 2016 a licensed psychotherapist "shall report to a local law enforcement agency, within 24 hours," the identity of a person who has made such a threat;² and a person who, on or after 1 January 2014, "communicates to a licensed psychotherapist, as defined in subdivisions (a) to (e), inclusive, of Section 1010 of the Evidence Code, a serious threat of physical violence against a reasonably identifiable victim or victims" is barred from possessing or buying "any firearms whatsoever or any other deadly weapon for a period of five years" from the date of the report, with a right to petition the superior court to lift it.³
The trigger, word by word
- "Communicated to the psychotherapist." The statement has to reach the therapist. The text speaks of the patient communicating it. The Legislature said in 2012 that renaming the duty from "warn and protect" to "protect" was not a substantive change — "Nothing in this section shall be construed to be a substantive change" — and that courts should read the section "in a manner consistent with the interpretation of this section as it read prior to January 1, 2013."¹
- "A serious threat of physical violence." Not property, not self-harm, not vague hostility. Self-harm is handled by different rules. Is therapy confidential? →
- "A reasonably identifiable victim or victims." A name, or enough that the person can be identified. The statute does not say how large a group can still be "reasonably identifiable"; a generic "someone, someday" plainly is not.
For the duty to protect and the disclosure permission, "psychotherapist" is anyone within Evidence Code §1010's definition — among others, psychiatrists, psychologists, clinical social workers, marriage and family therapists, professional clinical counsellors, and their associates, interns and trainees.¹ ⁴ The firearm prohibition and the 24-hour report are narrower: they reach only a threat made to a psychotherapist in §1010 subdivisions (a) to (e) — a psychiatrist, a licensed psychologist, a licensed clinical social worker, a credentialed school psychologist, or a licensed marriage and family therapist.² ³
What "reasonable efforts" look like
The statute names two recipients: "the victim or victims and … a law enforcement agency."¹ Both, not one. The therapist does not have to succeed in reaching the victim; the standard is reasonable efforts. The confidentiality statute lets the disclosure happen: a psychotherapist may disclose medical information "if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat."⁴ And the privilege that would otherwise keep the words out of court falls away: "There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger."⁵
Notice that the confidentiality permission and the privilege exception are broader than the duty. The duty arises only on a serious threat against an identifiable victim;¹ the permission to disclose covers "a serious and imminent threat" to "a reasonably foreseeable victim";⁴ and the privilege exception covers danger "to himself or to the person or property of another."⁵ A therapist may sometimes disclose when not required to.
The police report and the firearm ban
The part of this law that surprises people is not the warning; it is what the warning sets in motion.
- The 24-hour report. "A licensed psychotherapist shall report to a local law enforcement agency, within 24 hours, in a manner prescribed by the Department of Justice, the identity of a person" who has made the qualifying threat, and the police must pass it to the Department of Justice within 24 hours.²
- Five years without a firearm. A person who "communicates to a licensed psychotherapist … a serious threat of physical violence against a reasonably identifiable victim or victims" "shall not have in his or her possession or under his or her custody or control, or purchase or receive, or attempt to purchase or receive, any firearms whatsoever or any other deadly weapon for a period of five years."³ The clock starts "from the date that the licensed psychotherapist reports to the local law enforcement agency," and the prohibition "shall not apply unless the licensed psychotherapist notifies a local law enforcement agency of the threat."³
- The notice, and the way out. The Department of Justice must notify the person by certified mail of the prohibition and its dates, and that "he or she may petition a court … for an order permitting the person to own, possess, control, receive, or purchase a firearm."³ At the hearing the district attorney represents the People, and "the people shall bear the burden of showing by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner."³ Therapy and gun ownership in California →
What to do
- If you are afraid of saying something: ask your therapist, in the first session, to walk you through exactly what would trigger a report. The answer should track the statute — a serious threat, physical violence, an identifiable person.¹ Wanting to hurt yourself is a different conversation, with different rules.
- If a report was made about you: you will receive a certified letter from the Department of Justice about the firearm prohibition; the petition route is in that letter.³ You may also want to ask the therapist what was said to whom, and request your records. How to get my therapy records →
- If you are the person threatened: the therapist's duty is to make reasonable efforts to reach you and the police.¹ A gun violence restraining order is a separate tool a family member or officer can seek. Gun violence restraining orders →
Worked example
A man tells his therapist, a licensed psychologist, that his former business partner ruined him, that he knows where the man parks, and that he has a handgun in his truck and intends to use it on Friday. That is a serious threat of physical violence against a reasonably identifiable victim.¹ The therapist makes reasonable efforts to reach the former partner and calls the police;¹ within 24 hours she files the report the Department of Justice prescribes.² The patient is now prohibited from possessing or buying a firearm for five years from the date of that report, receives a certified letter saying so, and may petition the superior court, where the district attorney must show he would not be likely to use firearms safely.³ Had he instead said "some days I hate him enough to kill him," with no plan, no means and no intent, the section 43.92 duty would not be triggered — though the therapist keeps her discretion under the confidentiality statute and the privilege exception if she believes he is dangerous.¹ ⁴ ⁵
Q&A
Q: I said I wanted to hurt myself. Does this law apply? A: No. Section 43.92 is about threats of violence against another person.¹ Self-harm disclosures are governed by the privilege exception and the confidentiality statute, not by the duty to protect.⁴ ⁵ Is therapy confidential? →
Q: Does the therapist have to warn the person, or just the police? A: The statute says "the victim or victims and … a law enforcement agency."¹
Q: Does a report go on a criminal record? A: The report goes to local police and the Department of Justice for the firearm prohibition;² ³ it is not a criminal conviction, but the Department of Justice keeps the report and files it with the court if you petition.³ The statutes cited here say nothing about whether police must investigate.
Q: I am a therapist. Is the duty "warn" or "protect"? A: Since 1 January 2013 the statute says "duty to protect"; the Legislature stated that "Nothing in this section shall be construed to be a substantive change."¹
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Sources
- Cal. Civil Code §43.92 — (a) "There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to protect from a patient's threatened violent behavior or failing to predict and protect from a patient's violent behavior except if the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims"; (b) "There shall be no monetary liability on the part of, and no cause of action shall arise against, a psychotherapist who, under the limited circumstances specified in subdivision (a), discharges his or her duty to protect by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency"; (c) "It is the intent of the Legislature that the amendments made by the act adding this subdivision only change the name of the duty referenced in this section from a duty to warn and protect to a duty to protect. Nothing in this section shall be construed to be a substantive change, and any duty of a psychotherapist shall not be modified as a result of changing the wording in this section"; (d) "in a manner consistent with the interpretation of this section as it read prior to January 1, 2013" — california.public.law. Amended by SB 1134 (Stats. 2012, Ch. 149) — legiscan.com.
- Cal. Welfare & Institutions Code §8105(c) — "A licensed psychotherapist shall report to a local law enforcement agency, within 24 hours, in a manner prescribed by the Department of Justice, the identity of a person subject to the prohibition specified by subdivision (b) of Section 8100. Upon receipt of the report, the local law enforcement agency … shall notify the department electronically, within 24 hours"; (f) "This section shall become operative on January 1, 2016" — california.public.law.
- Cal. Welfare & Institutions Code §8100(b) — (b)(1) "A person shall not have in his or her possession or under his or her custody or control, or purchase or receive, or attempt to purchase or receive, any firearms whatsoever or any other deadly weapon for a period of five years if, on or after January 1, 2014, he or she communicates to a licensed psychotherapist, as defined in subdivisions (a) to (e), inclusive, of Section 1010 of the Evidence Code, a serious threat of physical violence against a reasonably identifiable victim or victims. The five-year period shall commence from the date that the licensed psychotherapist reports to the local law enforcement agency the identity of the person making the communication. The prohibition provided for in this subdivision shall not apply unless the licensed psychotherapist notifies a local law enforcement agency of the threat by that person"; (b)(2) the certified-mail notice from the Department of Justice, including "(B) That he or she may petition a court, as provided in this subdivision, for an order permitting the person to own, possess, control, receive, or purchase a firearm"; (b)(3)(A) the petition to "the superior court of his or her county of residence," the district attorney as respondent, the Department of Justice's duty to "file copies of the reports described in Section 8105 with the superior court," and (B) "The people shall bear the burden of showing by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner" — california.public.law.
- Cal. Civil Code §56.10(c)(19) — "The information may be disclosed, consistent with applicable law and standards of ethical conduct, by a psychotherapist, as defined in Section 1010 of the Evidence Code, if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat" — california.public.law.
- Cal. Evidence Code §1024 — "There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger" — california.public.law.
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