It comes as no surprise to learn that James Holmes, the Aurora shooter, had psychological problems, as reported by Fox News.
James Holmes, the accused gunman in last Friday’s midnight movie massacre in Colorado, mailed a notebook “full of details about how he was going to kill people” to a University of Colorado psychiatrist before the attack, and the parcel may have sat unopened in a mailroom for up to a week before its discovery Monday, a law enforcement source told FoxNews.com.
“Inside the package was a notebook full of details about how he was going to kill people,” the source told FoxNews.com. “There were drawings of what he was going to do in it — drawings and illustrations of the massacre.”
News like this can’t help but raise thoughts of the 1976 decision, Tarasoff v. Regents, where the California Supreme Court held that mental health professionals had a duty to warn when they had an objective basis to believe that a patient intended to harm another person. The court held that the duty trumped the requirements of confidentiality
The public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.
Following Tarasoff, many states enacted statutes addressing this duty, some of which were permissive (in that they permitted a psychologist to break patient confidentiality which would otherwise be prohibited), while others, like Colorado, were mandatory, emphasizing the affirmative duty to warn.
But Tarasoff addressed the duty with regard to a specific, identifiable victim, rather than the generic desire to spray a public place with bullets. From the 10th Circuit’s decision in the Tarasoff aspect of the John Hinckley shooting of President Reagan, Brady v. Hopper.
In Tarasoff, the Court held that “[w]hen a (psychotherapist, psychiatrist, psychologist or therapist, as used interchangeably) determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.” In Thompson, the Court refused to extend the Tarasoff obligation imposed upon a third person in a setting where there was no identifiable victim. The Court instead concluded that there was no duty on the part of a third person where the patient had made generalized threats to kill but no specific threats to specifically identifiable victims. (Citations omitted.)
Here, it appears that the University of Colorado psychiatrist attending to Holmes didn’t actually know of the damning notebooks until after the rampage. While that certainly speaks poorly of their diligence and mail distribution system, it also suggests that the psychiatrist may have had no basis to believe that Holmes was a serious threat to anyone.
A predicate to the duty to warn is that the psychiatrist be actually aware of the threat.
The court concluded that absent allegations in a complaint that a psychiatrist is aware of his patient’s specific threats to specific victims, there exists no legal duty or obligation on the part of the psychiatrist for harm done by the patient. The court found that “… [t]he legal obstacle to the maintenance of this suit is that there is no relationship between Dr. Hopper and plaintiffs which creates any legal obligation from Dr. Hopper to these plaintiffs.” 570 F.Supp. at 1339.
Even though the Colorado psychiatrist may not have seen the notebooks, that doesn’t preclude the possibility that Holmes had orally discussed his intentions of slaughtering innocent people in a theater, such that actual awareness of a serious threat existed.
This raises an issue of whether the Tarasoff requirement of the intent to harm a specific, identifiable person extends to a situation where the threat of harm is to a specific, identifiable occurrence. In other words, Holmes may not have intended to kill a particular person, but expressed his intention to walk into a theater on opening night of the new Batman movie and kill whoever happened to be there.
The point of the Tarasoff specificity requirement is that it’s insufficient to violate confidentiality, and to create a duty to warn, in the absence of sufficient detail of a particularized harm to have something to warn about. The duty isn’t to warn that a person is generally dangerous, but a danger to someone.
However, where the threat of harm is sufficiently specific to pinpoint when and how, if not to whom, the harm will come, it would seem utterly irresponsible not to permit, if not mandate, a warning. While concerns about the need for confidentiality to preserve the viability of mental health treatment are clearly significant, those concerns fall short when the psychiatrist has an objectively founded belief that their patient will engage in murder, whether against an identified individual or at an identified time and place.
Based on the limited information available, it’s impossible to know whether a ripe Tarasoff issue arises in this case, whether because the psychiatrist lacked actual knowledge of the threat or because the information possessed was too vague to give rise to the duty. But that there are serious questions of mental illness involved, and that this may have provided a means to prevent this horrific shooting from having occurred, is no shocker.
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Is this a Tarasoff issue or a Maples issue – if one of the world’s “preeminent law firms” gets a free pass for not opening its mail, how can a mere psychiatrist catch any flack for letting mail sit unopened for a few days or weeks?
Does the Ostrich defense work in cases where someone has to “know” something before liability attaches? You miss 100% of the shots you don’t take and you don’t “know” 100% of the stuff that sits in unopened envelopes I guess… In Maples, the ruling made sense – you don’t kill people because their ‘preeminent law firm’ was too busy buying 15,000 leather coasters imprinted with the firm’s crest to notice a package relating to its pro bono death penalty case… but professionals DO have a duty to open their mail and respond promptly to what is inside…
The mindboggling Sullivan & Cromwell screw up is different, given that they had an affirmative duty to their client, Cory Maples, whether pro bono or not. The University of Colorado psychiatrist had no duty absent actual knowledge, and whether they would have had a duty to open the mail sooner in any event seems pretty remote.
I’m curious whether a school psychologist/psychiatrist has any duty outside the school calendar. If one’s clients are students and students are excused for the summer break–when, presumably, staff is also on a break–what sort of duty attaches?
We don’t even know whether there was any doctor-patient relationship until that’s confirmed or denied. I have people send me unsolicited files and mail frequently (you probably do, too). Without additional facts or confirmation, any speculation about the psychiatrist’s actions or duty are really just that – speculation.
Assuming, for purposes of discussion, that there was some established relationship and that a psychiatrist had sufficient information to think there was some real threat or danger, I do not see this as a Tarasoff situation unless the patient mentioned the theatre or a specific event at which the attack would occur.
BUT: I would be thinking of my duty to protect my patient’s health and safety – which means I’d be thinking of an involuntary hold. And that’s the issue I see: not whether there was a duty to warn, but rather, whether there was a duty to protect Holmes with an involuntary hold.
I assume you are referring to the failure to open the mail and see the notebook, as your question doesn’t relate to any other aspect of this issue. If so, there is no duty to timely open mail to begin with, whether school is in session or not, relating to Tarasoff, so there’s nothing much to be curious about.
What’s interesting about your comment is that the Tarasoff duty came about because of the anticipated reluctance of most mental health professionals to demonstrate concern for others over their patient. This is why the standard for a Tarasoff is objective rather than subjective, as psychiatrists are too likely to “forgive” their patients their trespasses, and unlikely to believe that someone under their care would go out and slaughter people. This is good for patients. Not so good for the people they kill.
I think it’s similar in psych and law, Scott: both fields are bound by confidentiality and practitioners need to know under what circumstances we should – and must – breach confidentiality to protect the safety of others. Otherwise, we may feel – or actually may be – bound to protect confidentiality despite what might be tragic results.
But my point was that we can protect public safety by protecting the patient even if/when Tarasoff doesn’t apply and in this case, it may be more appropriate to ask whether any professionals involved fulfilled their duty to protect their patient from himself.
Psychiatry is not a hard science. Practitioners will make errors in judgement or predicting their patients’ behavior. If they think in terms of protecting the patient’s safety instead of duty to warn, it may make it easier for them to take steps that will ultimately help the patient *and* protect public safety.
Would there be a discernible difference if he said a specific date, time and location? It would seem a decent argument could be made that at the midnight showing on July 20th in theater X the set of people attending was in fact the possible set at the time the letter was written, just not actualized. Would a doctor have a duty to warn specific patrons intending on going, to warn the theater, or is just reporting the threat to the receptionist answering the phone at the police non-emergency number?
It’s not similar at all. For lawyers, confidentiality extends to all crime committed (past tense). There is no confidentiality as to any future crime. Lawyers have no duty to protect the confidence of a person about the future intention of harming anyone.
The duty to notify has been alternately described as warning the individual at risk or the police (without specificity as to who in the police department it might be). On this, you’re getting into minitiae.
As for how much specific detail would be needed if the target isn’t specified, that has yet to be determined since it’s an argument, and no court has held it to be a duty.
If your client seeks advice about the lawfulness of a proposed course of action, is that protected by attorney-client privilege?
If the question is how to do something lawful, then it’s protected. If it’s about how to commit a crime and get away with it, then it is not.
I stand corrected. Thanks for clarifying. I thought our fields were more similar on this.