In July in Aurora, Colorado, an armed man went on a shooting rampage inside a movie theater, killing 12 and wounding 58 others. The suspect is James Holmes. Allegedly, he’d been under psychiatric care and had tried reaching his former psychiatrist, Dr. Lynne Fenton, just before the attack. Now the family of one victim has launched a wrongful death lawsuit against Fenton. According to media reports, the lawsuit claims that she did not exercise her “duty to use reasonable care to protect the public at large.”
In other words, Holmes should have been detained for evaluation rather than allowed to stay free.
Once again, we’re faced with the issue of defining danger to self or others, and of what it means to exercise a duty to warn or protect. None of these concepts is easy to define.
Without knowing the details of Fenton’s relationship with Holmes or the specifications of the lawsuit, we can still examine the notion that therapists possess the unique ability to recognize when an individual has become imminently dangerous.
Threat assessment involves making educated predictions from a variety of factors. Possible factors come from multiple domains, such as past history, present support systems, medical history, substance abuse, recent stressors, and the presence of certain types of personality disorders. The database from which threat is predicted must be large and broadly representative.
This issue is rooted in a case from the late 1960s. Prosenjit Poddar attended the University of California at Berkeley, where he met and became obsessed with Tatiana Tarasoff. At one point, he sought outpatient psychiatric services. The treating psychiatrist diagnosed paranoid schizophrenia, prescribed medication, and referred Poddar to a university psychologist for counseling. But Poddar persisted in his delusion and finally killed Tatiana. Her parents sued the university for not warning them or restraining him.
In 1974, the California Supreme Court found that, despite a long tradition of patient-psychotherapist confidentiality, a duty to warn exists when the therapist determines a warning is essential to avert a danger rising from a patient's condition. Confidentiality was not ensured.
It goes without saying that this ruling changed the nature of the therapeutic relationship.
Most jurisdictions across the country now recognize a Tarasoff-type duty but limit it to situations in which the patient communicates a serious threat of physical violence against an identifiable victim. Therapists are legally obligated because they have a “special” relationship – assuming care and custody of a patient, which encompasses the potential victims of that patient.
Thus, therapists are supposed to develop expertise in predicting who might become violent. Also, when patients (or clients) know that any threats made in a therapist’s office might have serious repercussions, they might stay silent, or lie, rather than try to defuse their anger.
In jurisdictions that impose a duty to protect, there are alternatives to an outright warning, such as notifying law enforcement or involuntarily committing the patient. Disclosure to a potential victim need occur only where there are sufficient indicators to lead a competent physician to reasonably conclude that an individual will act out violently toward that person or location (“zone of danger”).
Still, predictions can cover only a brief period. To hold a therapist negligent for any possible future violent act of a patient would be to impose an impossible standard of care. In Holmes’s case, the time that elapsed between psychiatric contact and his rampage will likely be crucial in settling the lawsuit.
Different levels of risk are associated with different types of threats. In general, when threats are vague, implausible, inconsistent, or indirect, with no specific targets mentioned, this is considered low risk. The threat might be nothing more than venting. The risk level grows more alarming with specific details and with evidence of planning.
A medium-level threat could be carried out, but the place, person, and time remain vague or general. Yet when preparatory steps are clear and the threatener has access to weapons, the risk of genuine danger rises. Those messages that are direct, specific, credible, and show planning for something that might happen soon should be taken most seriously.
Whether a lawsuit against a psychiatrist can hold up will depend on the laws in that jurisdiction. However, to expect that any mental health expert can always and accurately predict when a person will be violent in the manner of James Holmes is asking too much of the profession. Standards of care must be followed, of course, but no standard of care will cover every possible scenario.
Incidents of extreme assault derive from a range of contexts and precipitators, which makes it difficult to develop a full comprehension of their causes. However, pent-up frustration and anger play a significant role, complicated by attitudes of blame and entitlement, the need to control others, and the obsession to “be someone.” The better our attempts to develop stress tolerance strategies for people at risk, the more likely it is that we can avert at least some potential tragedies.