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The Insanity Defense: James Holmes, the Aurora Shootings and the Psychiatrist's Dilemma

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Lawyers for James Holmes, the man accused of killing 12 people and injuring 70 in an Aurora, Colorado movie theater, now say he will change his plea from "Not Guilty" to one of "Not Guilty by Reason of Insanity" (NGRI).

In an earlier post (Crimes, Criminals and the Insanity Defense), I described the basic components of such a defense. The defendant claims he either lacked the capacity to know right from wrong, or had a mental disorder when he committed the crime, causing an inability to act within the requirements of the law.

James Holmes is charged with multiple counts of murder and attempted murder in the Aurora incident of July 20, 2012. Holmes' attorneys have said in hearings and written court documents that Holmes is mentally ill and was being treated by a psychiatrist before the attack. There are reports that Holmes' treating psychiatrist (identified in court documents) reported "unspecified concerns" about him to a University of Colorado police officer before the actual attack. Reportedly, a threat assessment team at the University took no further action after the psychiatrist reported Holmes in June 2012.

There are now civil lawsuits arising from the horrific shootings in the theater that night. The university is being sued, as is the theater chain, for alleged negligence concerning what has been characterized as foreseeable dangers to the public. How these lawsuits will play out remains to be seen.

This brings into focus the role of the psychiatrist treating James Holmes at the time he went on his rampage. And it raises issues about confidentiality, the doctor-patient relationship, and the physician's responsibility to report a patient who may voice or make known an intention to harm a third party.

Traditionally, therapists had only a limited duty to control hospitalized patients and exercise due care when discharging them; and the obligations extended to non-hospitalized patients--those seeing a psychiatrist or psychologist for private treatment.

The law recognizes psychiatrists have a limited ability to predict violence with any accuracy (Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 551 P.2d334, 131 Cal. Rptr. 14). Violence involves a complex interplay among social and personality factors that may vary under different situations at various times.

However, the now well-known Tarasoff ruling (cited above) expanded the therapist's legal duty to inform a third party of a patient's violent intentions, and expanded the therapist's potential liability if he or she fails to do so.

The Tarasoff ruling was handed down by the California Supreme Court in 1976 after Tatiana Tarasoff, a University of California student, was stabbed to death by a disturbed young man who had been in treatment at the student health center. The plaintiffs argued the perpetrator's action was eminently foreseeable, and something should have been done to prevent it. Mental health organizations argued in court that therapists are unreliable at predicting an individual's dangerousness.

But, the court decided that a therapist had a duty to inform a third party, if a patient voiced violent intentions toward that person. The court recognized its ruling could lead to unnecessary warnings, but concluded "once a therapist does in fact determine, or under applicable professional standards should reasonably have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable (italics are mine) care to protect the foreseeable victim of that danger." (Tarasoff ruling, cited above).

Many states followed California's lead, and psychiatrists, psychologists, and other mental health professionals now have a "duty to warn" potential victims of a patient's violent intentions. It appears the psychiatrist in the Holmes matter informed the campus police of "unspecified concerns" about Mr. Holmes.

I do not know anything about Holmes' mental state (either then or now) and have no involvement in the case. However, this situation brings to mind the dilemma facing a mental health professional treating a patient who voices violent or potentially dangerous intentions toward others.

It's well-established that the doctor-patient relationship is one of confidentiality. HIPPA regulations and court rulings over the years have dealt with this issue. Many psychiatrists have been sued for violating a patient's right to privacy in one or another way. This right is sacrosanct. However, the sanctity of that privacy ends when others are placed in potential danger.

The mental health professional must make a judgment call when it comes to assessing a patient's intentions to harm another person or commit a violent act. Is the patient expressing a lurid fantasy? Is he making statements to "impress" or worry the therapist for some reason? I'd like to murder so-and-so can be words uttered by any patient in the emotional throes of an intense session. Is the patient psychotic? Can he separate fantasy from reality? Even if he is insane, will he translate his psychotic beliefs into action? Does he have a history of violence? Does he own a weapon or have access to one? If he does, would he tell the therapist? If the therapist warns the other person or calls the police, and it turns out the patient had no real intention of carrying out the threat, has the therapist violated the patient's right to confidentiality and thereby compromised the therapeutic relationship? Can the therapist be sued for a breach of confidentiality?

The Tarasoff decisions states: "once a therapist does in fact determine... that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger."

What constitutes reasonable care to protect the foreseeable victim? Does the therapist inform the intended victim? Does he call campus police and the local police? How about notifying the FBI if applicable? Does the therapist relay "unspecified concerns" about the patient, or does she/he quote exactly the patient's words? Does the therapist report the patient's prior words or deeds (or threats that were never acted on) and in so doing, does she/he violate the patient's right to privacy? Is the therapist opening the door for the patient to sue for breach of privacy -- for intruding on the patient's right to seclusion?

These can be difficult and complicated issues and the line between anger, humiliation, grievance and complete madness is not always clear. Still, the therapist must make the call, and decide whether or not to inform others of a patient's words or feelings when there's the possibility that nothing may happen.

In many instances, this is a real dilemma.