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: http://ssrn.com/abstract=1551505 or http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1551505
Gutheil TG, Appelbaum PS.
Clinical Handbook of Psychiatry and the Law. Lippincott, Williams & Wilkins. Phialdelphia (2000): p 148
