Tuesday, May 27, 2014

The Duty to Warn

The recent “day of retribution” in California which left six individuals dead and more than a dozen more injured has again brought to the forefront our society’s inability to identify and prevent mass shootings. Despite the fact that the shooter’s mother voiced concerns about her son’s behavior with his therapist and the therapist contacted authorities, law enforcement officials found insufficient grounds to justify an involuntary commitment.  Apparently, the officers who visited the suspect never bothered to even search his apartment.  Had they done so, they would have found his arsenal as well as his writings and plans of the attack. Ironically, California is one of 27 states where therapists are bound by a mandatory duty to warn third parties of threats to their safety.

The United States has some of the most robust “duty to warn” laws among Western European countries.  Although there is a recognized common law exception in the U.K. to the duty of confidentiality, the law has stopped short of imposing a duty to warn the public of a potentially dangerous patient. In the aftermath of the highly publicized case, W. vs. Egdell, in 1990, the U.K.’s General Medical Council issued this policy statement: 

‘If you remain of the view that disclosure is necessary to protect a third party from death or serious harm, you should disclose information promptly to an appropriate person or authority. Such situations arise, for example, where disclosure may assist in the prevention, detection, or prosecution of a serious crime, especially crimes against the person, such as abuse of children’.

Other countries however impose less robust duties on mental health professionals. For example, in New Zealand, psychiatrists possess no formal duty to warn the public of potential dangers posed by their patients. At the same time, the lack of a formal duty is not an absolute license to protect patient confidentiality at all costs as both psychiatrists and institutions do possess a duty to safeguard potential victims from foreseeable harm. In France, as well, practitioners possess no legal duty to warn the family and relatives of a patient’s potential dangerous. In addition, although French law does permit individuals to be held involuntarily against their will for mental health reasons, there is a robust procedural process in place which is designed to protect the patient’s confidentiality and freedom.

The first reaction of the media to mass killings seems to focus on finding some person or law that is at fault for the carnage. In this area of the law, the United States appears to be out in front in trying to set up a legal framework to head off a castrophe. The solution likely lies in the direction of more efficient data sharing. But if authorities were able to improve their ability to collect this type of data, it might not only raise privacy issues, but resource issues as well. In our tax-phobic environment, there is currently little political will to fund an expansion of mental health resources. 

References

Adam Nagourney & Erica Goode, “Limits to Law and Information Sharing, Despite Gunman’s Danger Signs,” New York Times, May 26, 2014.

Associated Press, “Elliot Rodger’s Family Tried to Intervene Before Deadly Rampage,” FOX NEWS, May 27, 2014.

Alan R. Felthous, Roy O'Shaughnessy, Jay Kuten, Irène François-Pursell, Juan Medrano, “The Clinician's Duty to Warn or Protect: In the United States, England, Canada, New Zealand, France and Spain,”  The International Handbook of Psychopathic Disorders and the Law: Laws and Policies, Volume II, pp. 75–94, 2008.

Colin Gavaghan, “Dangerous Patients and Duties to Warn: A European Human Rights Perspective,”14 Eur. J. Health L. 113 (2007).

http://lawprofessors.typepad.com/comparative_law/2014/05/the-duty-to-warn.html

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