Sunday, April 7, 2013

The Duty to Warn, Law Enforcement and the Public Health

The issue of reporting dangerousness to law enforcement was in the news this week with a story 2 days ago about the accused Colorado theater shooter James Holmes.  I happened to catch it on public radio where it was announced that NPR had been one of the news organizations who had petitioned the court for access to suppressed information about the psychiatrist’s role.  The New York Times story states that the psychiatrist – Dr. Lynne Fenton contacted campus police about Holmes' potential dangerousness and they deactivated his student ID and access to campus building.  Various sources state that he was threatening his psychiatrist by e-mail.  The new information is more detailed than an original article from the Denver Post on August 30, 2012.

In the original article Dr. Fenton testified that her physician-patient relationship with the patient ended on June 11.  At that appointment there are some reports that Holmes told Dr. Fenton that he fantasized about killing a lot of people.  The shooting occurred on July 20.   The newly unsealed documents show that the psychiatrist “told a police officer that her patient had confessed homicidal thoughts and was a danger to the public.”  The documents also show that the psychiatrist was being threatened by both e-mails and texts.  Dr. Fenton also advised the police officer that she was fulfilling her legal requirement by making the report to the police.  A related article states that police officer asked Dr. Fenton if she wanted the subject apprehended and placed on a 72 hour hold and she said that she did not.

In addition to the public health concern about homicide prevention, psychiatrists in this situation have a concern about the need to prevent their patients from harming others.  That forms the basis of at least one dimension of most state civil commitment laws.  Most state laws describe a duty to warn potential victims, but forensic psychiatry texts talk about more general responsibilities.  For example, Gutheil and Appelbaum state:

“Psychiatrists have always faced the potential of suits as a result of negligently allowing patients to be released or to escape from inpatient facilities when these patients later cause harm to others…” (p. 148)

In a typical outpatient setting, the modern duty to protect identifiable persons dates back to the Tarasoff case or Tarasoff v. Regents of the University of California.  In this case a psychologist was informed by his patient that he intended to kill a young woman.  The psychologist contacted campus police and advised them that the patient had schizophrenia and should be detained and committed.  The police temporarily detained the subject but he was released and several months later and killed the identified victim.   The courts found that there was a duty to warn the identified victim that superseded confidentiality.  I encourage anyone to read the details of the original review of the case to notice how negligence in this case passes from the mental health professionals to the police and back.  I think that there may be a more straightforward analysis and I would invite any evidence to the contrary.  My understanding is that the legal profession studies negligence from the perspective that there is no one who is free from responsibility.  In any complex activity like needing to report dangerousness, there will always be some sharing of responsibility if there is a bad outcome.  From a physicians perspective the probability of that happening increases with the presence of liability insurance.

On a personal level, occupational stress goes through the roof in situations like this.  Imagine that you are seeing patients in a clinic and trying to be as helpful as possible and you have just seen a person who you think is dangerous.  The situations is more complex if that patient has threatened a specific person, threatened you and your family, or brought a weapon into the clinic.  The first order of business is to try and calm down.  In some cases you may have colleagues available for consultation, but in many cases a psychiatrist is on their own.  The next step is figuring out whether you are in a situation that requires a duty to warn and what must be done to fulfill that obligation.  State statutes are complicated and not uniform.  In a recent review of state Tarasoff laws, the statutes of all 50 states and the District of Columbia were categorized into whether or not reporting was mandatory, discretionary, or no law at all. The definition of mandatory for this classification was a requirement to warn.  Discretionary allows for a breach of patient or client privileges for the purpose of warning.  Using this analysis 33 states have a mandatory duty, 11 states are discretionary and 7 states have no law.  Psychiatrists at this point may seek legal consultation due to the complexity of the situation and may still receive vague advice.  A good example is something along the lines of: “Well I would rather defend you for this rather than that.” – based on their preceding legal advice.  The first time I bumped up against that advice I realized that doctors were cannon fodder for the legal profession. 

The second critical point is the call to the police.  In both of the cases mentioned so far campus police were involved.  Are there courts where that would be questioned?  I don’t think that duty to warn laws specify any particular law enforcement.  Despite that lack of specificity, the police have widely variable capacities to respond to these calls.  The police can be notified and nothing can happen.  As illustrated in this post, the police can be notified and decide on their own that the patient is not dangerous and release them.  That also applies to what type of protection the police can offer potential victims.  I have seen the police go directly to a the person issuing the threats and tell them there will be clear legal problems if they do not stop to mailing a fax of a handgun receipt of transaction where the potential perpetrator who had already issued threats had acquired a handgun.  There is often a significant gap between any report to the police and palpable decrease in danger to those threatened.  In many cases an entire clinic is threatened and a safety plan needs to be put in place.  

The final consideration is whether the person needs an acute evaluation and emergency hospitalization for psychiatric assessment.  I have several previous posts giving my perspective on the issue of homicide prevention and how acute psychiatric treatment can prevent aggression and violence, but it takes a functional commitment court and facilities that have the expertise to provide this level of treatment.  Many decisions seem to be made based on existing resources rather than any absolute quality marker.  Should any person who is homicidal because of an acute psychiatric disorder not be hospitalized because the local community hospital does not treat aggressive individuals?  Should that decision be made on a decision by Medicare or the managed care industry on how many days of hospital care they will pay for?  Hospitalizations for these patients typically outrun the funding by 2 – 3 weeks.

Like all of the piecemeal approaches to involuntary treatment there is an easy fix.  I did not digress into the tremendous amount of stress these situations cause and how that stress can drag on for weeks to months.  If there is an adverse outcome the stress level is even worse.  What is needed is a clear pathway that maintains the boundary between law enforcement and psychiatry.  A uniform law implemented across the country should clearly say that a psychiatrist has a duty to report to law enforcement and at that point law enforcement has a duty to assess and potentially detain the person making the threat.  That would include transporting them to a hospital that does civil commitments for emergency treatment as necessary.  Law enforcement also needs to warn the potential victim and protect them.  Psychiatrists should have no duty to track down identified victims or apprehend or take threatening patients into custody.  That is clearly the purview of law enforcement.

The technical details of the interface between the law and psychiatry in the case of a threatening or potentially violent patient needs a great deal of improvement.  There are very few situations as stressful in the rest of medicine.  Some psychiatrists will encounter these situations only a few times in their career and others are immersed in aggression and violence.  Improving the approach will enhance assessment and treatment of the problem and also make it easier to recruit talented people to focus on the problem.

George Dawson, MD, DFAPA

Edwards, Griffin Sims, Database of State Tarasoff Laws (February 11, 2010). Available at SSRN: or

Gutheil TG, Appelbaum PS.  Clinical Handbook of Psychiatry and the Law.  Lippincott, Williams & Wilkins.  Phialdelphia (2000): p  148

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