A news item caught my eye regarding the conviction of a French psychiatrist of manslaughter for failing to protect the public from a patient with severe mental illness who eloped from a psychiatric consultation, later hacking an elderly man to death with an axe. Two relevant news posts about the trial follow:
And there was the report of the widow of a man killed in a mass shooting who has filed a lawsuit against the psychiatrist who was treating the shooter.
Many psychiatrists are understandably worried about the implications of these actions against psychiatrists and patients are also concerned about how they might increase defensive practice, leading to less of a focus on helping people recover and move forward to more of a posture of protecting the public based on stereotyping and misplaced hunches. One forensic psychiatrist blogger doesn’t believe that criminal prosecution of psychiatrists who are accused of failure to warn will be more likely in America as compared to Europe because of the differences in our legal systems, saying:
“Presently, 39 states have made failure to report child abuse a misdemeanor criminal offense, and many have laws that criminalize sexual contact between patients and therapists. While most states have Tarasoff laws that impose a duty to protect or warn third parties when a patient is dangerous, to date no states have created any criminal penalties for failure to carry out this duty.” She goes on to point out:
“In America, the distinction between carelessness and intentional harm is maintained by our two separate criminal and civil procedures with their differing levels of proof. A criminal conviction requires proof beyond a reasonable doubt, while civil liability only requires proof by a preponderance of the evidence. This is why O.J. Simpson could be acquitted of murder but found civilly liable for the killing in a separate hearing.
The French legal system co-mingles civil and criminal procedures, and the alleged victim plays a larger role. While the decision to prosecute a case lies with the state’s attorney in America, in France, an alleged victim has the opportunity to appeal a decision not to pursue criminal charges. French criminal procedure is a non-adversarial system in which the judge or magistrate acts as a lead investigator, and both the defense and the prosecution act in support of that role. The goal is to seek the truth, for the benefit of the victim.
French victims also have a higher level involvement in criminal proceedings than American victims. Under the Federal Crime Control Act of 1990, American victims have a right to receive notice of the trial and the trial outcome, and to be present at trial. However, victims cannot call witnesses or compel the production of evidence, and they have no right to testify” .
Further clarification about the case against French psychiatrist Daniele Canarelli that numerous lapses in clinical judgment on her part were found by the jury. The court also said, “the court is not judging psychiatry here, but rather a very specific case with a specific misbehavior of the treating doctor” . The court also emphasized, that the “law does not require from the physician an obligation of result” and that “predictability and zero risk do not exist.”
The cases can involve patients with chronic, severe mental illness, often psychotic disorders for which there established medical evidence supporting effective treatment. However, the violent crimes which make the news so frequently are often perpetrated by those with Antisocial Personality Disorder (ASPD), a disorder that is, in general, not amenable to psychotropic medication, may be responsive to certain behavioral management interventions in specialized forensic units, but which is generally not handled well in most psychiatric clinics, hospitals in the community, or even in academic medical centers. Initial presentation to the emergency room is many times in the context of heavy intoxication complicated by suicide and homicide threats. It’s common for them to have histories of violent behavior and they can be large, strong, threatening males, often brought in by police. Once admitted to a psychiatric ward, they can become extremely disruptive and frightening to nurses and other patients. Psychiatric units in the community don’t typically have the personnel or equipment to subdue a physically powerful male with ASPD. Physicians, nurses, aides, and other patients can get badly hurt or even killed under these conditions. Sometimes doctors have to choose between protecting the safety of their own staff and protecting the public at least until law enforcement and potential victims can be informed–which should be immediately after the patient is either freed or elopes from the unit.
1. Hanson, A. (2012). Conviction of French psychiatrist no cause for alarm for U.S. psychiatrists. Shrink Rap News, Clinical Psychiatry News. 2013.
2. Jonas, C., MD, JD, and N. Nahban Abou, MD (2013). Psychiatric Liability: A French Psychiatrist Sentenced After a Murder Committed by Her Patient. Psychiatric Times, UBM Medica. XXX.