Duty to Warn

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:

French psychiatrist convicted of manslaughter for failing to recognise danger of patient -Telegraph

French psychiatrist sentenced after patient commits murder | Reuters

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” [1].

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” [2]. 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.

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Comments

  1. Jim – You make excellent points especially about the patchwork capability to treat violent individuals. In large cities, there may be a handful of psychiatric inpatient facilities but only one or two equipped to treat violent people. Even those facilities often have an all men’s unit and nobody knows what to do with the occasional very aggressive woman. These facilities often have special access to probate courts for civil commitment.

    I think that part of the problem is stigma. Many people even in our field lack the comfort level and vocabulary to deal with highly aggressive and violent individuals. You make a good point about antisocial personality disorder, but there are many of those individuals with addictions and transient psychotic states and/or comorbid psychotic disorders who are highly resistant to treatment and have no intention of following up with recommended outpatient care even if it is available.

    The other issue is boundaries with the legal system. As it exists, I think the current system is designed to shift practically all of the risk to psychiatry. That is the practical effect of duty to warn. To my knowledge, law enforcement has no to duty to warn, and they are the only people who can legally physically detain a potentially violent person. They are also the only entity who can comprehensively investigate and track down potential victims. Many psychiatrists have been in the situation where they see a person with a low potential for violence in their afternoon clinic who triggers a duty to warn scenario. They suddenly find most of their time taken up with that issue and by the end of the day have not been able to complete the duty to warn. What happens then? Are they supposed to keep working all night until they do find the threatened person?

    The only solutions here are to change the duty to warn to a duty to notify the police. The police are the only logical agents to execute this and the only people with enough resources. On the clinical side, it takes more than outpatient commitment to contain violent individuals with psychiatric illnesses. Most states have forensic facilities for containing them after crimes have been committed but very few resources to prevent the crimes. A more rational system would allow for the prevention of violence and more humane treatment of individuals with violence and aggression due to psychiatric disorders.

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    • Excellent points, George. Many don’t realize the logistical challenges in enforcing outpatient mental health commitments. For example, what if someone fails to appear for a scheduled clinic appointment? Do we try to call the patient at home first? What if we can’t reach him or her right away and how many times do we call? When do we contact the Sheriff’s office to pick up and escort the patient to the clinic? How many Sheriff’s offices have the manpower to make that a priority? If the patient is brought forcibly to the clinic, what happens if the patient requires psychiatric hospitalization when there are no beds open on inpatient psychiatric units? Keep the patient in an emergency room, and for how long? If no crime has been committed, simply sending the patient to jail is not reasonable either. Any deputy will tell us that. In a given situation, there may be few realistic options and many questions without immediate, practical answers which would ensure the safety of the patient and others potentially at risk.

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  2. It’s a disturbing case. From what I could tell from the news articles, it looks like the patient was hospitalized against his will several times, in the context of escalating violence, including arson and attempted murder. That leaves a lot of questions. Why was he discharged without more intensive follow up? Should he have been sent from the hospital to prison? Why did the psychiatrist continue to treat him, and not place him in more intensive follow up? What “intensive follow up” is available? Why did the psychiatrist wait to report him after he ran away from a session-the murder took place 20 days later?
    The psychiatrist is accused of “blindness”, and failing to act after consultation with colleagues, who recommended more intensive treatment than she could provide. She had treated him for 4 years. How easy would it be to overlook escalating violence in a patient one has known for a long time?
    The French courts are claiming that this isn’t an indictment of psychiatry as a field. It merely reflects on the behavior of one particular psychiatrist.
    This may be true, but will the public see it that way?
    And I’m not reassured by Dr Hanson’s description of the differences between the American and French legal systems. I’m sure she’s correct (I’ve met Dr. Hanson, and she’s a really smart/knowledgable/nice person). I just have an unerring faith in the potential for perversion of justice, particularly in view of the recent frenzy over SAFE.

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    • Very well said,

      I’m concerned too.

      The New York Secure Ammunition and Firearms Enforcement Act of 2013, commonly known as the NY SAFE Act, is a gun control law in the state of New York over which there is a good deal of controversy and about which I could use a lot more education. Skeptical as I sometimes am of Wikipedia, I admit that’s one of the first places I looked for quick background, http://en.wikipedia.org/wiki/NY_SAFE_Act#Criticisms. Could you give me your perspective?

      Jim

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