Critics: Mentally Ill Patients' Confidentiality Compromised In New York's Gun Law

Robert Siegel talks with Dr. Paul Appelbaum, director of the Division of Law, Ethics, and Psychiatry at the Columbia University College of Physicians and Surgeons. They discuss the ethics behind — and possible consequences of — New York's legislation requiring mental health professionals to report patients they believe could harm themselves or others.

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ROBERT SIEGEL, HOST:

More now on the provision of the New York state law regarding psychiatrists and other mental health professionals. As Joel Rose mentioned, the law says that they must report a patient to mental health authorities if they reasonably judge the patient is likely to do something that would seriously harm himself or others. Those authorities can then decide to take their concerns to law enforcement.

Dr. Paul Appelbaum is a professor of psychiatry, medicine and law at Columbia University. He's quoted in today's New York Times, calling that provision a major change in the presumption of confidentiality inherent in mental health treatment. I spoke with Dr. Appelbaum today and I asked him how he understands what he's obligated to do under this new provision.

DR. PAUL APPELBAUM: It would require me or any other mental health professional to report, essentially, to an agent of the state any of my patients who have suicidal or homicidal thoughts and about whom I'm concerned that they're possibly going to act on those thoughts.

SIEGEL: And from your standpoint, as a psychiatrist, what's problematic with that compromise of confidentiality?

APPELBAUM: My concern is that there are many patients who come into a consulting room thinking of hurting themselves, less commonly thinking of hurting other people. And in general, they tell me about those ideas or thoughts that they're having in private and I do my best to help them deal with those thoughts.

Under the new law, it's no longer a matter between the patient and me or any other therapist. It's now something that is revealed to the state. And when that happens, I'm afraid - and I know many of my colleagues share this concern - that patients simply won't come. Or if they do come, they won't tell us what's on their mind because they know that that will trigger an obligation to break their confidentiality and let the state in on their secrets as well.

SIEGEL: Is a psychiatrist or a psychologist, for that matter, obliged to report a patient who, say, is troubled by pedophile impulses that he hasn't acted on but conceivably might or a patient who expresses feelings toward a parent that verge on the murderous?

APPELBAUM: No. In the current situation, therapists are obliged to do their best to try to help their patients deal with their thoughts and impulses rather than acting on them. And they are free to use any means at their disposal to do that. But all of that remains within the therapist-patient dyad. The state doesn't get involved at any point. That's what would change under the current bill.

SIEGEL: Yeah. The current bill holds the psychiatrist, or the other mental health professional, legally blameless if he decides not to report a patient if that decision is reasonable and made in good faith. Does that language open the psychiatrist's reasonableness to judicial scrutiny if a patient goes on to commit a violent crime?

APPELBAUM: I think inevitably when a tragic outcome occurs, there will be a retrospective effort to try to discern just how reasonable a therapist's decision was. And since the act has already occurred, inevitably in hindsight it will look not to have been reasonable at all. So the immunity provisions of the statute, although they sound good on paper, are likely to be somewhat less than effective in practice.

SIEGEL: In your experience, let's say outside the context of consulting for a presentencing examination or parole or probation hearing, how good is psychiatry at predicting violent behavior of people the psychiatrists interview?

APPELBAUM: It's very difficult for any mental health professional to know with any degree of certainty what patients are going to do in the future, whether that's a matter of hurting themselves or attempting to hurt someone else. And inevitably, overprediction occurs. Many patients come into treatment talking about suicidal or homicidal thoughts. Very few of them ever intend to act on those thoughts. And yet distinguishing between those who will and those who won't act is a nearly impossible task.

SIEGEL: You know, it's interesting that for all the emphasis on mental health that we've heard since the terrible killings in Connecticut, the concern of mental health professionals like yourself is much more commonly about suicidal tendencies than about homicidal tendencies.

APPELBAUM: That's absolutely right. There are double the number of suicides compared with homicides each year. And suicidal ideation is one of the most common symptom that we treat. So although in this bill it may have been thrown in as an afterthought, it is where the likely greatest impact of this legislation will be.

SIEGEL: Suicide prevention?

APPELBAUM: On people who come in to the office with suicidal ideation.

SIEGEL: Could you, as a psychiatrist and somebody very involved in psychiatry and the law, could you imagine a counterproposal that would somehow address people's anxiety about what seems to be a rash of those with mental illness committing mass murder with guns and the concerns of the confidentiality of the psychiatrist's office?

APPELBAUM: We have two contrasting policy directions that lie before us here. We can try to identify people who we think are dangerous and to keep guns from them, or we could try to reduce the availability of guns in our society in general, particularly weapons that are designed for the purpose of killing large numbers of people.

Unfortunately, I think the approach that calls on us to identify dangerous people is inevitably going to fail. That's an impossible task, at least given our current state of knowledge. And so a much more reasonable set of approaches would focus on decreasing the availability of means of mass violence rather than trying to identify every person who's likely to get behind an automatic weapon and start pulling the trigger.

SIEGEL: Well, Dr. Appelbaum, thank you very much for talking with us about it today.

APPELBAUM: You're welcome.

SIEGEL: That's Dr. Paul Appelbaum, who is director of the division of law, ethics and psychiatry in the Department of Psychiatry at Columbia University.

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