Between a Rock and a Hard Place: Mental Health Professionals and the Duty to Protect

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It is clear from the circumstances of the Aurora shooter’s psychiatrist that deciding what to do about dangerous people is often a no-win situation for mental health professionals. Instead of blaming one person, changing the system would get better results.

As the justice system figures out what to do with him, Aurora movie theater shooter James Holmes is back in the news. This time, it is about what kind of plea he will give and what kind of punishment he deserves. Prominent in the news stories is the fact that Dr Lynne Fenton, James Holmes’ on-campus psychiatrist, broke confidentiality to inform campus police of the dangerous statements Holmes made during his sessions with her, and his subsequent threatening package and text messages. Campus police responded by deactivating his college ID to prevent him from passing through any locked doors. We have yet to hear whether they did anything beyond that, but, as we all know, whatever action they took was not enough to save twelve people.

Even though Dr Fenton did give warning (and really cannot be held responsible for what police did or did not do with her alert), she is now being blamed for not doing enough. Media reports indicate that at least fourteen people have filed legal documents indicating they are planning to sue both the University of Colorado Denver and Dr Fenton for negligence. A widow of one of the Aurora shooting victims already has sued her for negligence and wrongful death, stating that Dr Fenton did not “use reasonable care” to protect others when she rejected a law enforcement officer’s offer to involuntarily confine Holmes for 72 hours. Under Colorado’s “duty to protect” statute, involuntary confinement is an option open to mental health professionals who are concerned about a patient’s dangerous intent, but it is not required, especially if they took other steps to minimize the threat (like calling police). And while involuntary commitment may sound like a good idea after the fact, in reality, such a decision would have been very difficult to make.

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Confidentiality and trust are the bedrocks upon which all good therapy is built. In order for mental health professionals to be of assistance, people have to be willing to tell us things that are difficult and embarrassing. They only will do so if they know their conversations will not be repeated unless it is for a good reason, and if they trust us to make good decisions regarding their welfare. And that is where the Tarasoff case comes in.

Decided in 1976, the Tarasoff case (Tarasoff vs. Regents of the University of California) determined that mental health professionals have a duty to protect others by breaching confidentiality when threats are made against a specific person. In the Tarasoff decision, Prosenjit Poddar, a severely mentally ill graduate student, made specific threats in therapy against Tatiana Tarasoff, a young woman who had spurned his romantic advances. The psychologist informed campus police of Mr Poddar’s dangerous intent and recommended that he be detained for at least 72 hours. The police picked up Mr Poddar and, after obtaining a promise that he would try to stay away from Ms Tarasoff, let him go. Simultaneously, the Director of Psychiatry (the psychologist’s supervisor) deemed it unnecessary to detain Mr Poddar any further. However, no one informed Ms Tarasoff or her parents of the threat. Mr Poddar discontinued treatment following his detainment and, several months later, killed Ms Tarasoff. Her parents sued the university and both mental health professionals, stating (among other things) that they failed to warn/protect Ms Tarasoff, even though they knew she was in danger. The court agreed and the Tarasoff precedent was born.

Oh, in case you were wondering, Prosenjit Poddar was originally convicted of murder in the second degree, but upon appeal, his conviction was reduced to manslaughter and the case was remanded for retrial. Rather than go through another lengthy trial, and after serving only four years of his five-year sentence, the state released Mr Poddar on condition that he immediately leave for India and not reenter the United States. He returned to India where, according to sources, he is now happily married.

Clearly, justice was not served in this case, and it seems like it was more law enforcement and the legal profession that failed the Tarasoff family. Despite the court’s ruling in Tarasoff, it is worth pointing out that the psychologist was correct in what he did. He tried to detain Mr Poddar so that he wouldn’t hurt others. Even a warning to the Tarasoff family might not have made a difference, especially given the police’s misunderstanding of mental illness. Thus, it is puzzling to me that ultimately it was the mental health professionals who were made to shoulder the blame.

And this blame has continued. Since the Tarasoff case was decided, most state statutes have included a “duty to protect” in the exceptions to confidentiality. Many states have even expanded the scope of the original case, although others (like Texas) have completely rejected the idea of duty to protect. As such, mental health professionals often walk a tight high wire in terms of what our legal, ethical and moral responsibilities are — not only our to patients, but also to the public at large. We are supposed to keep people’s confidentiality and break it only under certain circumstances. If we do break confidentiality and recommend involuntary commitment, and the patient ends up fine, then we can be sued for violation of confidentiality and unlawful detainment. Equally important, we will have betrayed our patient’s trust for no good reason, and someone who was already hurt will be even more so. Yet, if we do not break confidentiality and people end up getting hurt, that too will be our fault.

In Dr Fenton’s case, James Holmes had previously threatened her, so if police picked him up and then let him go (which actually was a pretty likely scenario), then she would have possibly made a person who already had it out for her even angrier than he was before. However, if she did not break confidentiality or suggest confinement and he went berserk (like he did), then the people he hurt could sue her for negligence. In other words, Dr Fenton was in a no-win situation. Thus, it sounds like she compromised by warning police about the danger he posed, while rejecting the detainment. And, although it’s difficult to know what any of us would do in that situation, I’d be willing to bet that many mental health professionals would make the same decisions Dr Fenton did.

As such, although I deeply sympathize with the victims of the shooting, I wish they could see through the fog of emotions long enough to realize that the shooting was not Dr Fenton’s fault. She did the best she could. She tried to help this young man, who was clearly in the throes of a major mental illness, and when she couldn’t do that, she tried to keep him from hurting others. This is a nightmare that many of us in the field live with every day and it is very unfair to put this burden on our shoulders. As I have written before (see “Preventing Violence: What Can We Do to Stop Mass Shooting?”), the answers to preventing things like this will not be found by making individuals like Dr Fenton pay for not knowing the future. Instead, we must reform the system. I understand that blame is easier but, if we truly want prevention, then we have to be willing to change a lot more than one psychiatrist.

All clinical material on this site is peer reviewed by one or more clinical psychologists or other qualified mental health professionals. This specific article was originally published by on and was last reviewed or updated by Pat Orner Oliver on .

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