The Line Between Confidentiality And Public Safety
LYNN NEARY, HOST:
This is TALK OF THE NATION. I'm Lynn Neary, in Washington.
Six weeks before the Colorado movie theater shooting, a psychiatrist treating suspect James Holmes contacted the University of Colorado's Behavior Evaluation and Threat Assessment team to express concerns about him. But the University team reportedly never met to discuss the issue, because Holmes was in the process of dropping out of school.
The decision to breach confidentiality with a patient because of a potential threat to public safety is a difficult one for mental health professionals. It's a decision that others like teachers or the clergy may also face. Some states have passed laws requiring a warning. Some have not. Either way, it's a judgment call with enormous consequences. And what happens when that threat is ignored?
Mental health professionals, members of the clergy, if you've faced this decision, what do you do? Tell us your story. Our number is 800-989-8255, and our email address is firstname.lastname@example.org.
Later, Romney's running mate, on the Opinion Page. Will Paul Ryan help or hurt the GOP ticket?
But first, balancing patient confidentiality against a potential threat to public safety. Charles Ewing is a forensic psychologist and attorney, and he joins us now from member station WNED in Buffalo, where he is professor at the State University of New York.
Welcome to the program.
CHARLES EWING: Thank you.
NEARY: Now, I know that in your own career, you have faced this kind of decision. I wonder if you can just begin by telling us the circumstances when you had to make that decision, and what it was like for you.
EWING: Well, I faced it many times early on in my career when I did psychotherapy. More recently, the past couple of decades, I've faced it on a regular basis, as an attorney giving advice to mental health colleagues. I think probably the starkest example I can think of came a few years ago, when a psychologist from another state contacted me and wanted legal advice. He was a colleague of mine and someone I know pretty well, a very capable psychologist.
He told me that he'd been seeing a patient who was injured in an accident and had a personal injury suit that was taking a long time in the courts. And as the psychologist was treating this man, over time, the man became increasingly obsessed with getting his case settled, said that his lawyer was thwarting that. He began to make statements about making the lawyer pay, getting the lawyer, taking care of the lawyer.
The psychologist tried to calm the patient over many weeks. One day, the patient came in and announced that he knew where the attorney lived, because he'd been following him. And then about a week or so later, he told him that he had purchased a gun, and he planned to use to do whatever it took to make his case get going, in his words.
The psychologist believed, at that point, that the patient may have been planning to shoot the lawyer. He lived in a state, he worked in a state that had very strict psychotherapist-patient - or psychotherapist-patient confidentiality, but did not have a duty to warn the law. So he was under no legal duty to warn. He was under a legal duty to keep this confidential. And his question to me was: What do I do?
It's a question that I had faced many times in my own practice - maybe not quite as starkly as that. But, to me, what we had here was two competing interests. And this is always the case.
EWING: One is confidentiality, the relationship between the psychologist - or psychotherapist and patient on the one hand, and on the other hand, the safety, perhaps even the life of another human being. So...
NEARY: What did you advise him? And I want to talk about the laws later, but before we even get to the laws, let's just talk about - and you can perhaps illustrate this for me in your answer - you know, what is the judgment call you have to make here, I mean, regardless of what the law is?
EWING: Well, there are a number of judgment calls you have to make, even in states that have a so-called duty to warn law. One is: Is this a serious threat? And is it a threat that's made against a specific person, or a person who can be readily indentified? And is the threat imminent? That is, is it likely to be carried out very soon?
To me - and I don't mean to flippant. I was not flip to my colleague and client. To me, it was a no-brainer, both legally and ethically. Ethically, I think we all value life over principles, even deeply held principles such as confidentiality in a professional relationship.
And legally, I told him that I could not imagine a jury or a licensing board taking negative action against him if he made this report and violated the confidence of his patient. But I did tell him that even though his state did not have a so-called Tarasoff or duty to warn law, that I could imagine that with creative lawyering and creating judging, that he could be held liable in the long run if he didn't report this to the authorities, if he didn't take some reasonable steps to protect the attorney's life in this case.
NEARY: So did he? Did he follow you advice?
EWING: He did. He did.
NEARY: And was that the right decision in this case? I mean, did it turn out...
EWING: Well, we really don't know, and that's part of the problem. We're asked on a daily basis in the psychological and mental health fields to make predictions about people's behavior in the future. In this case, it seemed to me and it seemed to the psychologist who was treating this man that he did pose a serious and imminent danger. But we really don't know that.
There were no negative consequences for the psychologist in this case. But there could have been, because in some states, there have been a few examples of cases in which psychologists, psychiatrists, other mental health professionals have faced similar situations and have made a judgment call to report, and someone decided that it wasn't serious. It wasn't imminent, and you violated the confidence of your patient.
NEARY: See, how do you know? That was my - of course, that was my next question, was: How do you know when it is an imminent threat? I mean, how do you make that decision? Do you have any guidelines that you would suggest someone follows?
EWING: Well, I can say this: I've been in this field for 30 years, and most of my career has been spent as a forensic psychologist. And in my training and my experience, I'm constantly making decisions about whether someone poses a danger to self or others. But most mental health professionals, most psychologists, psychiatrists, psychotherapists have little-to-no training and little-to-no ability to make those kinds of judgments. That's part of the problem with these laws, is that we're imposing a duty where we really believe people can do what they can't do, and that is predict the future.
NEARY: Well, what - yeah, let's talk about the laws. And we should say - and you can explain this - that, you know, we're talking about the fact that there are some laws that require - some states that require a person to warn the public if there is an imminent danger, as you said.
NEARY: But it's not all states, right?
EWING: No. About 22 states have laws on the book that are mandatory. Another dozen or so states have permissive laws. These laws apply primarily, if not exclusively, to mental health professionals. And they're generally the laws - whether they're written by the legislatures or contained in case law - they're fairly strict. They don't require someone to make a report unless there is a serious threat, an imminent threat, and a threat toward a specific person or persons.
NEARY: And then can these laws apply to professionals other than mental health professionals? To say, let's say, a teacher...
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NEARY: This is TALK OF THE NATION. I'm Lynn Neary. And before we get back to our conversation about reporting potential threats, Texas A&M University reported a shooter on campus this afternoon. The college issued a Code Maroon and told students and residents to avoid the area. An update said that local police have the shooter in custody. We'll continue to monitor that situation and bring you any updates.
Right now we're talking about warning signs in cases of mass shootings, a therapist or a pastor who identified a potential threat and faced an often difficult judgment call, whether or not to violate the confidence in the name of public safety.
My guest is Charles Ewing, a forensic psychologist and attorney. He teaches at the State University of New York at Buffalo. We'd like to hear from mental health professionals and members of the clergy. If you faced this decision, what did you do? Tell us your story, 800-989-8255. Or contact our email address, email@example.com. And Roger, a psychotherapist from Nevada, is still on the line.
I had one question for you, Roger. You mentioned sort of in passing there that while you've often made these decisions in consultation with the patient, you did have a situation where somebody got violent right away. And I would think that would be one of the, well, scary prospects for any professional trying to do this. What happened in that case, and how did you deal with that situation?
ROGER: Well, I saw it coming as soon as the guy came in the door. He wanted to be hospitalized, and the referring psychiatrist did not want to admit him. And I could see that this - and I knew the patient well enough that I knew he was going to do whatever it took to get admitted to the hospital. So it was just a matter of - you know, he sat down, we had a very brief conversation.
He started getting loud, and I reached for the panic button under my desk, and he thought I was reaching for the telephone, and he grabbed the telephone and threw it at me and missed. But - and he later apologized. He didn't really want to get violent. He just wanted to be locked up.
NEARY: What does a panic button do? Can I ask you - you just said again in passing, do you have a panic button? Who would come in in a case...
ROGER: In that case, that was at a VA hospital, and it would have just notified the VA police, and then they would come to - come to your rescue.
NEARY: All right. Well, I really appreciate your calling, Roger. And I wanted to follow up with Charles Ewing. What did you think of what Roger said, that this can be done in consultation with the patient and that that worked for him?
EWING: I think that's frequently the case. The key, though, is - and he mentioned it - is notifying the patient up front before the relationship begins that there are limits to confidentiality. This isn't the only limit. He mentioned mandated reporters. For example, all professional licensed psychotherapists in every state are required to report reasonable suspicions of child abuse.
So if a patient tells you about information that leads you to believe that a child's being abused or has been abused, all bets are off in terms of confidentiality. What I found in my practice when I was involved in that kind of practice was that's the best way to handle it, is to give the patient a laundry list right from the start, saying these are the instances in which there will be no confidentiality.
And interestingly, like Roger, I found in my own practice that it really didn't make any difference in terms of what people revealed to me. I could tell someone if you talk to me about child abuse, I will have to report it, and people would continue to talk to me about child abuse. Or if you make a threat, I'll have to take some action to prevent it; they would still make threats.
NEARY: All right, let's take a call from Naomi(ph), she's calling from Petaluma, California. Hi, Naomi.
NEARY: Go ahead.
NAOMI: So I have two instances, one when I was a therapist, in the case I was a therapist, and another involving somebody else. In the first, a woman was threatening to kill her mother. It wasn't imminent, but I took it seriously because she was continually threatening me. I referred her to a colleague. I was pregnant at the time and felt endangered. The colleague ended up calling the police on the woman.
But she did kill her mother and herself three years later.
NEARY: So that seems to me an indication that you really - no matter what you do, sometimes you really can't, in fact, head off...
NAOMI: Yeah, and she did it the same way she said she would: She drove her car into a tree and killed them both.
NEARY: So you tried to intervene, but it just didn't work in this case.
NAOMI: Couldn't. And the other situation was, you know, 50 years ago, when I was a freshman in college, or I guess - not quite 50 - 40, whatever - my father had a client - he was a lawyer - who was threatening to kill his wife's family. It was - my father's client was the wife, and the estranged spouse was threatening to kill the wife's family, and my father was warned by the police, by the therapist. He didn't take it seriously, and then a Molotov cocktail was thrown through a window of the wife's family, and my parents were taken into protective custody.
But my father all the while was saying, well, I don't believe he'll do anything (technical difficulties) graduate of law, at Yale Law School. He couldn't believe that somebody would attack him.
NEARY: Yeah. Naomi, thanks so much for your call. I want to follow up with Charles Ewing on that because that again gets to what we were talking about earlier, and that is, you know, it's so much a question of your own judgment. In this case that Naomi described, her father just didn't believe that it was possible. And, you know, that can - people can err on the side of trusting, perhaps, too much in a patient or a client and get themselves in trouble, I guess, with the law apart from even the moral consequences of what happens if they don't...
EWING: I agree. It - the basic foundation of the therapeutic relationship is mutual trust. A patient must trust the therapist. The therapist must be able to have trust in the patient. And I have seen many cases in which therapists did not want to believe that their patient was dangerous when it was clear that the patient was.
On the other hand, I've seen it the other way around too. Sometimes people have jumped the gun, no pun intended. They have believed someone was dangerous when they weren't. I think it comes back to what I said earlier, and that is that for the most part people in the mental health profession, no matter how well-trained they are, are not clairvoyants. They don't have an ability to predict the future.
NEARY: And making a mistake about a person can also do incredible damage to that individual. If you point the finger at them and say they are going to do something dangerous, they're a threat to society, that...
EWING: It can ruin a person's reputation, in some cases ruin their livelihood. It can destroy relationships with their loved ones. These are very difficult cases to deal with, and I have great empathy for people who have to deal with them. I've dealt with them, and I still maintain that if we're going to err, we must err on the side of public protection.
NEARY: All right. I want to bring somebody else into this discussion now. Many colleges and universities in recent years set up threat assessment teams to help identify and deal with potentially violent students. Steven Healy served as chief of police and director of public safety at Princeton University. He's now managing partner at Margolis Healy & Associates, and he joins us from member station WPSU at Penn State University. Steven Healy, welcome to the program.
STEVEN HEALY: Good afternoon, Lynn.
NEARY: Now, tell us about the threat assessment strategy that you developed, and I think it's being used as a model on other campuses as well, right?
HEALY: It is. Shortly after the tragedy at Virginia Tech, our firm won an award from the Department of Justice, the Office of Community-Oriented Policing Services, to develop a national model for threat assessment and then to teach that program to institutions around the country.
And so as part of the grant, we held 10 day-and-a-half seminars around various parts of the U.S., and basically the model that is part of that program is based on the model that was developed as part of the U.S. Department of Education and Secret Service Safe School Initiative, shortly...
NEARY: What is involved in it? I mean, what is involved in making the assessment?
HEALY: Sure. So it's really about a process. It's a dynamic process that at the core, there's a well-functioning, well-trained threat assessment team that is responsible for receiving information about a member of the campus community that may represent a concern and obviously having the appropriate policies and procedures to then evaluate and assess whether an individual actually represents a threat to - either to him or herself or to the rest of the campus community. So it is a dynamic...
NEARY: Like what are the criteria? What are the criteria that would be used?
HEALY: Well, what we teach in the program is to focus on behavior. So if there is - if there is an individual who is exhibiting some behavior that you would - that any person would determine is abnormal, or concerning in any way, then we want that individual to bring that behavior to the attention of the team so that those trained professionals can assess whether in fact an individual represents a threat. And so let me give you a typical example. If you have a student that becomes increasingly aggressive following a bad mark on a paper and is continually coming back to the professor and, I guess, for a lack of another term, arguing about the particular grade and while not making a direct threat makes veiled a threat - veil threats toward that particular professor, saying things like, well, if you don't change the grade, then I'm going to have to do something else.
Those are the types of behaviors that we would want to come to the team, so that they can then assess, number one, as Charles mentioned, is there an imminent-threat situation? Obviously, if there's an imminent-threat situation, all bets are off. We either affect an arrest if a crime has been committed or try to get that individual committed for psychiatric evaluation. In most cases of threat situations or concerning behavior, the individual doesn't make an outright threat. It's much more complex. So it's about the behavior that someone may be exhibiting over a period of time, or it may be about one particular situation that raised the ear or raised the concern of the individuals who witnessed this.
NEARY: And I guess, I'm wondering what kind of authority or power these teams have to really do anything because as I understand it in the Aurora case, you know, James Holmes' psychiatrist contacted the University of Colorado's threat assessment team, and then nothing was done because he dropped out of the school. I mean, where is the, you know, where is the power to do something once somebody approaches one of these evaluation and threat assessment teams?
HEALY: Sure. Well, I can't speak directly obviously to the case in Aurora. However, I will tell you that institutions wield considerable authority over individuals who are part of their community. So if it's a student, if it's an employee, there are steps that the team can take to, again, gather information - assuming that it's not an imminent-threat situation - but gather information about the individual, figure out what's going on, what's the situation in this individual's life that's causing them to come on the radar. So what is the concerning behavior?
And in many cases, we're able to resolve the situation by either entering into a behavioral contract with the individual, getting that individual mental health counseling, all the way up to expelling the individual from the institution as an extreme example. Obviously, that's not the first option. What we want to try to do is get help for the individual so we can move them off of this path of concerning behavior and back into a path of becoming a valuable, contributing member of the university community.
NEARY: Steven Healy is managing partner at Margolis Healy & Associates, and you're listening to TALK OF THE NATION from NPR News. We're going to take a call now from Kate, and she's calling from Columbus, Ohio. Hi, Kate.
KATE: Hi there. My concern, I'm somebody who's actually received a Tarasoff warning from a therapist of - an employee of mine. And once you get such a warning, there are really very little resources as to what you can do. I went to the local authorities. They're, like, we can't do anything just based on a threat, and so I really felt pretty powerless. And then the individual made a second threat to their therapist who then called me again.
NEARY: And I'm sorry. I'm not - where were you in the...
KATE: I'm the person being threatened.
NEARY: OK. So the therapist called you to say that you were being threatened.
KATE: Correct. On two different occasions. And, you know, law enforcement won't help you on a threat.
NEARY: All right. Steven Healy, can you - this is different...
NEARY: ...from the university situation, I understand that, but as a law enforcement specialist, can you advise this caller at all or tell us what this situation - how to deal with a situation like this?
HEALY: Sure. Well, what - first of all, we would encourage all law enforcement agencies across the country not to say that there's nothing that we can't do. There are a number of tools and resources at our disposal. One of the first that we work with individuals who may be the recipient of a threat is safety planning. So what safety planning can we put in place to, you know, set up a situation where the individual is not at risk, so the individual who's being threatened is not at risk.
Again, if there's an actual threat and there's a Tarasoff warning being issued from a mental health professional, I believe that there are other options, and I think Charles can speak to that as well. But if there's an actual threat toward an individual, there are obviously criminal laws possibly that are being broken as well.
NEARY: At this point, Kate, you don't know what to do. You're in a situation where you've tried to get some help, and you haven't been able to at all?
KATE: The good news is this individual has moved away, but during the time when this threat was imminent and there were two separate threats made that came to me as a Tarasoff warning from the therapist, I went to my local law enforcement and literally got no help at all. And so I actually got in touch with some retired law enforcement who talked to me about changing my daily driving habits, taking a different route to work every day, working with my boss to change my work schedule so it was much less predictable. I never drove straight to my home. I always drove a different way to, you know, go to other places immediately following work so that I was less predictable, but I got zero help.
NEARY: So you went and you found somebody who could help you, though? You had to be very proactive, you're saying? It wasn't...
KATE: That's correct because I was scared to death.
NEARY: Yeah. Well, thanks so much for calling, Kate.
NEARY: Charles Ewing...
HEALY: And, Lynn, that's the type of safety planning that we would encourage, and I think that is in fact being adopted as law enforcement agencies become more sophisticated about threat assessment and steps that one can take to in fact protect themselves and to triage the offender or the individual who is of concern.
NEARY: And, Charles Ewing, just as we're drawing to a close, it just - one thing I'm coming away from this - with this, this is like a big gray area. There's very little black and white here at all, it seems to me.
EWING: It's extremely gray. And just for those of - who are listening who might not be familiar with the term Tarasoff, that's the name of a woman who was murdered in California and brought a - her family brought a lawsuit, and it was the Tarasoff case that led to these duty-to-warn laws originally. Anyway, I guess the only other thing I would say is that with regard to callers, that it's not these laws are not duty-to-warn laws. That's sort of a misnomer. These laws require us in the mental health professions to take reasonable steps to prevent the harm from occurring. I can't think of an instance in which I or one of my colleagues has contacted the individual who's threatened directly. I think it's much better, much safer to contact the police and to make their own best efforts.
NEARY: Charles Ewing, thanks so much. Charles Ewing is a forensic psychologist and attorney. We were also joined by Steven Healy, managing partner at Margolis Healy and Associates. You're listening to TALK OF THE NATION from NPR News.
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