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"The bar is set very low" for therapists to break confidentiality, an expert says
The Colorado shooting suspect's therapist reportedly contacted colleagues
There is a gray area for clinicians when it comes to raising concerns
Confidentiality is paramount between a patient and a therapist, but it’s not ironclad – confession to a crime, or the possibility of a potential crime, is not supposed to remain a secret.
“There is no clear-cut rule that psychiatrists are ever taught, but frankly, the bar is set very low in terms of breaking confidentiality,” says Xavier Amador, a clinical psychologist and adjunct professor of psychology at Columbia University’s Teachers College. “If there is any certain specific threat made, you have an obligation to report it.”
Lynne Fenton, a psychiatrist treating accused Colorado movie theater gunman James Holmes, 24, was so concerned about his behavior that she contacted several members of the University of Colorado’s Behavior Evaluation and Threat Assessment team, known as BETA, which is responsible for evaluating potential threats, CNN affiliate KMGH reported Wednesday.
Report: Holmes’ psychiatrist reported behavior to colleagues
“Fenton made initial phone calls about engaging the BETA team” in “the first 10 days” of June but it “never came together” because in the period Fenton was having conversations with team members, Holmes began the process of dropping out of school, a source told KMGH.
Sources told KMGH that when Holmes withdrew from school, the team “had no control over him.”
But Gene Deisinger, deputy chief of police at Virginia Tech and head of the school’s threat assessment team, says, “We don’t close a case solely due to someone leaving the university.”
“The decision to close a case is made based on assessment that the person no longer poses a threat of violence or significant disruption to the campus or to any other identifiable target,” he says.
However, Deisinger, a former clinical psychologist, added that without knowing more details, it’s impossible to draw conclusions about the University of Colorado’s actions.
There remains a gray area for clinicians when it comes to flagging concerns about a patient. Simply put, it comes down to a therapist’s interpretation about how specific a patient is when talking about violent thoughts or plans.
A specific threat means the patient clearly identified a targeted person or group, or gave specific details like a location or a time frame.
“If you have a patient who says, ‘I’m planning to kill my parents,’ that’s the far end of the spectrum and would trigger a warning to the parents,” says Alta Charo, medical ethicist and legal professor at University of Wisconsin.
A nonspecific threat would be a patient venting that he or she is angry and feels like he or she could kill somebody, according to Charo.
In this gray area, a clinician’s professional judgment is key. They have to identify whether there is a sense of urgency, and if there is a likelihood of a patient acting on the thoughts. A patient’s history of violence, mental illness and substance abuse is also considered, according to the Journal of Family Practice.
Two California Supreme Court rulings, called Tarasoff I and II, shaped the ground rules for a clinician’s duty to warn and protect a patient from themselves, and/or a potential victim or crime from taking place.
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The Tarasoff case arose when Prosenjit Poddar, a student at the University of California, Berkeley, told his therapist of his intention to kill fellow student, Tatiana Tarasoff.
The therapist informed campus police, who briefly detained the student, but released him after he appeared rational and promised to stay away from Tarasoff. No further action was taken, and Tarasoff was not warned of the potential threat. Two months later, in October 1969, Poddar stabbed and killed Tarasoff.
The decision in Tarasoff I says therapists have a duty to warn a potential victim of a threat, even if it violates doctor-patient confidentiality. Tarasoff II, an extension of the first ruling, says the therapist also has an obligation to protect the person by alerting the appropriate law enforcement agency.
At Virginia Tech, with more than 30,000 students, faculty and staff, the core group of the Threat Assessment Team is comprised of nine individuals from different parts of the university, including school police, academic officials and representatives from counseling services.
In a typical year, Deisinger says, his group responds to “350 to 400” reports of troubling behavior. In most cases, he says, a simple investigation finds no danger.
A federal law known as the Clery Act requires schools to report to law enforcement any criminal acts on campus, and to report any immediate threats to health or safety.
But disturbing behavior often doesn’t reach that threshold, according to Steven Healy, the former director of public safety at Princeton University who helped develop a widely used threat assessment program, using a grant from the Department of Justice.
“The majority of the cases reported are just unusual communication or odd behavior that doesn’t break the law,” says Healy. “We aim for early intervention with a simple conversation to assess the threat, or to push the person towards mental health services.”
The bar is higher for psychologists, psychiatrists and other medical professionals to report to police. Failing to identify potential harm by a clinician would not be a criminal offense, according to Amador, but it can open a door for a civil lawsuit if they did not disclose the information.
All states require therapists to inform patients before a session that their confidentiality agreement may be revoked if it is determined the patient is a threat to themselves or others. But details vary from state to state on who the therapist is required to inform.
In Colorado, doctors, nurses, mental health professionals and their staffs are required to break confidentiality and warn a potential victim and alert law enforcement if a serious threat is suspected.
Complete coverage: Colorado shooting
Caleb Hellerman and Caitlin Hagan contributed to this report.