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Expert: Package to Holmes' psychiatrist may not be privileged

By Tom Watkins, CNN
updated 10:48 AM EDT, Sat July 28, 2012
Cynthia Davis, center, visits the roadside memorial set up for victims of the Colorado shooting massacre across the street from the Century 16 movie theater on Monday, July 30, in Aurora, Colorado. Twelve people were killed in the theater early July 20 during a screening of "The Dark Knight Rises." Suspect James Holmes was taken into custody shortly after the attack. <a href='http://www.cnn.com/2012/07/20/us/gallery/colorado-theater-shooting/index.html' target='_blank'>More photos: Colorado movie theater shooting</a> Cynthia Davis, center, visits the roadside memorial set up for victims of the Colorado shooting massacre across the street from the Century 16 movie theater on Monday, July 30, in Aurora, Colorado. Twelve people were killed in the theater early July 20 during a screening of "The Dark Knight Rises." Suspect James Holmes was taken into custody shortly after the attack. More photos: Colorado movie theater shooting
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Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
Colorado massacre: Mourning the victims
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STORY HIGHLIGHTS
  • "After the fact, there may be no further harm to be prevented," says medical ethicist
  • A psychiatrist who thinks a patient is an imminent, direct threat must report, he says
  • Medical ethicist: If she has info about crime, "she has a duty to notify"

(CNN) -- Legal and medical experts said Friday it was not clear whether courts would uphold an assertion of privilege made Friday by a lawyer for the suspect in last week's mass shooting inside a Colorado movie theater over the contents of a package he sent to his psychiatrist.

James Holmes was a patient of a University of Colorado psychiatrist before the attack in Aurora, Colorado, which killed 12 people and wounded scores more, according to a court document filed Friday by his lawyers.

The disclosure was in a request by Holmes for authorities to hand over a package he sent to Dr. Lynne Fenton at the university's Anschutz Medical Campus.

Had the package contained clear threats and arrived before the shooting, there would be no question about the duty of the psychiatrist to hand it over to authorities, said Professor Arthur Caplan, head of medical ethics at New York University's Langone Medical Center.

Who is Dr. Lynne Fenton?

The school said Wednesday in a statement that it received the "suspicious package" on Monday. It described as "inaccurate" a Fox News report citing a source who said the packaged was received July 12 and sat in the mail room.

But Fox was reporting Friday that its source said "the package was mailed well before the attack took place, but had not been delivered to its intended recipient."

CBS News reported that the package included a description of how Holmes was planning to kill people.

"The standard is if you believe that your patient is an imminent, direct threat to another person, then you have to say something," Caplan said in a telephone interview.

But Alta Charo, a professor of law and medical ethicist at the University of Wisconsin in Madison, said it was not so clear. She described the legal code as "a messy business, because it actually varies from state to state."

Charo added, "In general, privilege will apply with things a patient said in the past, or about past acts. But there are myriad exceptions and the exceptions vary from place to place and they're very fact-specific about what the patient said and to whom."

Dr. Joseph J. Fins, chief of the division of medical ethics at Weill Cornell Medical College at New York Presbyterian Hospital, noted that doctor-patient confidentiality is considered sacrosanct, except in isolated cases where, to protect the patient or others, it can be breached.

Colorado shooting suspect was a psychiatric patient

If the package arrived after last Friday's shooting spree, the matter becomes a judicial question that could be settled by whether its contents were subpoenaed, he said.

"After the fact, there may be no further harm to be prevented," Fins said. At that point, it's up to the individual psychiatrist to decide whether to consider the information privileged anyway, he said. "It's like journalists who don't want to give up a source. Journalists have gone to jail protecting a source, and other times they have not."

According to Holmes' request, the package seized by authorities under a July 23 search warrant was a protected communication.

"The materials contained in that package include communications from Mr. Holmes to Dr. Fenton that Mr. Holmes asserts are privileged," said the document filed by public defenders representing Holmes. "Mr. Holmes was a psychiatric patient of Dr. Fenton, and his communications with her are protected."

In response, prosecutors asked District Court Judge William Blair Sylvester to deny the request, saying it contained inaccuracies, including claims of media leaks by government officials that may have been fabricated by news organizations.

Sylvester set a hearing on the request for Monday, the same day that Holmes is scheduled to be formally charged in the case.

Opinion: Why the media cannot ignore the killer

Court appearance fuels theories about Colorado shooting suspect

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