In the wake of the Germanwings crash in Europe last month, the media outcry has focused on the failure of the doctors who treated co-pilot Andreas Lubitz to notify the Lufthansa hierarchy of his unfitness to fly. If that, in fact, was their diagnosis.
Every time there is an incident of violence and any intimation that the perpetrator was mentally ill, this concern about the medical community's "duty to warn" and "duty to protect" surfaces. It helps to make sense about senseless tragedies.
The thinking goes: If only such and such was done, it wouldn't have happened. Bad things can be prevented if those people would just do their job.
I'm sorry, but there is no way to make the world 100 percent safe. Ever.
There are also major problems with the emphasis on "duty to warn or protect." The California Supreme Court emphasized the principle in a 1974 case, Tarasoff v. Regents of the University of California, saying mental-health professionals have a duty not only to protect their patients, but also anyone threatened by a patient. It is not surprising the public assumes all mental-health professionals must warn intended victims and law enforcement of patients' violent tendencies. But there are so many errors in this assumption.
First, Tarasoff is a California case, and the rules vary by state. There is no federal law.
Health care providers must follow a variety of ethical codes, professional guidelines, and state and federal laws. The Health Portability and Protection Act of 1996 was enacted to protect patients' privacy and confidentiality. Releasing information without a patient's informed consent exposes the practitioner to liability, and doesn't guarantee a tragedy would be prevented. Often, disclosure would cause some type of stigma or discrimination to the patient.
An example: Mr. X tells his therapist he intends to hurt or kill Mr. Y. The therapist believes him, notifies Mr. Y, and tells the appropriate law-enforcement to keep an eye on Mr. X.
For how long? Days? Weeks? Months? Years?
If Mr. X does nothing, he could sue the therapist for violating his privacy rights. There are no clear standards about how certain the therapist must be (nor how the therapist determines this); they have no training in risk management, and can be right about as often as wrong.
Depending on the patient and situation, there will be as many false positives as false negatives. The best predictor of future behavior is past behavior. Many people, including Lubitz, had no known history of violent acts, to self or others. We know he had a history of depression, but the vast majority of depressed people don't harm themselves or others. We have no evidence about whether Lubitz was medicated (prescription or recreational), hallucinating, or had a personality disorder.
Jeffrey Lieberman, a past president of the American Psychiatric Association raised several questions: How often should mental evaluations be done? With whom should specific information be shared? How? If an employer requires a person to see a specific provider, that provider routinely reports to the company and the employee knows that. It's also a reason to avoid company docs.
There are no experts in predicting individual acts of violence; there are only guesses. A far bigger danger — and tragedy — is that most people equate mental illness with violence.
The most important consideration is the unwillingness of people with mental and emotional concerns to seek, obtain, and remain in treatment. We should encourage a person with violent fantasies or thoughts to be treated by a competent professional. Since those professionals are required to inform patients of the limits of confidentiality, including any legal mandates about a duty to warn, the most likely outcome would be to discourage the very people who most need treatment.
We see this even in Tarasoff itself. If the doctor had not notified the authorities, the perpetrator might have remained in therapy and the victim might not have been killed.
Max Siegel, a past president of the American Psychological Association, was vehemently against the Tarasoff ruling as early as 1979. Last year, Donald Bersoff, another APA past president, called Tarasoff "bad law, bad social science, and bad social policy."
We don't like to deal with uncertainty, but that's the only certain thing about life.