A conversation with a psychiatrist is traditionally given the same status of “privilege” as a conversation with a lawyer, a physician or a priest. The purpose is essentially the same: To encourage individuals to seek advice, guidance and treatment by assuring them that what they reveal won’t be betrayed.
Candor is especially critical when it comes to mental illnesses. A psychiatrist can’t, say, take blood or do an MRI to diagnose and then properly treat the patient. Instead, he or she must largely rely on what the patient says.
There are exceptions, however, to doctor-patient privilege, when a physician is not only permitted but actually required to break a patient’s confidence. For example, if a patient directly threatens to hurt or kill a specific individual, a doctor must warn that person or the authorities.
The duty to warn is primarily derived from the 1976 case Tarasoff v. Regents of the University of California, in which the Supreme Court of California ruled that mental health professionals have a duty to protect foreseeable victims of their violent patients by warning them directly or notifying the police.
Several courts have subsequently clarified that this duty applies to “readily identifiable” victims.
But should we expect doctors to take steps to protect someone that a patient hasn’t overtly threatened? A court in Washington seems to think so.
Jan DeMeerleer killed Rebecca Schiering, his former girlfriend, and her nine-year-old son Phillip, and stabbed another son, who survived. (A third son was present, but left unharmed.) DeMeerleer then went home and killed himself.
Family members claim that Schiering had moved out of DeMeerleer’s home two months before, after he had hurt one of her sons. The couple attempted to reconcile, but Schiering broke up with DeMeerleer for good a few days before the attack.
The family of the victims and the surviving sons sued Dr. Howard Ashby, the psychiatrist who had been treating DeMeerleer for almost nine years, and the clinic at which he worked. They argued that Ashby was negligent because he didn’t warn the Schierings about DeMeerleer.
In response, Ashby argued that although DeMeerleer had talked about killing himself and killing his ex-wife and her boyfriend, he never made such threats toward Schiering or her children. The lower court agreed, ruling in Ashby’s favor on the grounds that DeMeerleer had made no specific threats toward the Schierings during his treatment.
But the appeals court reversed that judgment, finding that doctors could be required to warn “all foreseeable victims” of potentially dangerous patients in their care. Whether the attack on the Schierings was foreseeable should be decided by a jury, concluded the appeals court.
On Dec. 22, 2016, the Supreme Court of Washington agreed with the appeals court and ruled that the lawsuit should proceed to trial.
The Supreme Court acknowledged that, “[w]ithout question, mental health professionals face an incredibly difficult task in ascertaining whether a patient will act violently.” Nonetheless, it concluded that such professionals are under a duty of reasonable care to protect the foreseeable victims of their patients.
The court stressed the public’s interest in safety from violent assaults by the mentally ill, concluding that this interest warranted broadening the liability of mental health professionals for the potential actions of their patients.
(However, the dissent countered that alerting the authorities, in the absence of a clear target or imminent threat by the patient, hardly assists in the prevention of harm, while breaching patient confidentiality.)
In the case at hand, Ashby and DeMeerleer had a doctor/patient relationship that spanned nearly nine years. This “special relationship” required Ashby “to take reasonable precautions to protect anyone who might foreseeably be endangered by DeMeerleer’s dangerous propensities.”
Some facts the court felt could arguably have indicated to Ashby that DeMeerleer might target Schiering and her kids included:
- DeMeerleer’s history of suicidal and homicidal thoughts;
- His attempts to act out suicide and retribution at different times, such as by playing Russian roulette;
- His instability at their last meeting; and
- His history of failing to take his antipsychotic medications.
The Supreme Court concluded that summary judgment was inappropriate because there’s a genuine issue of material fact as to whether, based on the standards of the mental health profession, the harms experienced by Schiering and her family were foreseeable.
The dissent and an amicus brief from the Litigation Center of the American Medical Association and several other medical societies raised concerns about imposing on mental health professionals a general duty to protect third parties from harm by patients.
These concerns apply to the majority opinion’s impact on both doctors and their patients.
The dissent warned that a weakened confidentiality shield may actively discourage the mentally ill from seeking treatment, which isn’t in the patient’s or society’s best interests. Moreover, even if individuals do seek treatment, they may be wary of communicating openly with their doctors, undermining the effectiveness of such treatment.
The amicus brief stated, “Holding mental health professionals liable to third-party victims who were not reasonably identifiable as targets of actual threats places an impossible burden on mental health professionals and limits their ability to treat patients.”
Another troublesome aspect of the decision relates to the fact that Ashby treated DeMeerleer as an outpatient and thus had little control over his behavior. In fact, the Washington State Medical Association expressed concerns that “this exception to confidentiality…may lead to more involuntary commitments as physicians become reluctant to leave certain patients unsupervised.”
So how do we strike the proper balance?
We want potentially violent patients to seek treatment, and to be honest with their doctors for both their own protection and the general public good. But the decision in the Ashby case threatens to make such patients less likely to seek help and doctors less likely to be willing to treat them.
Doctor-patient privilege is important and breaches to such confidentiality shouldn’t be taken lightly. Still, there are some things we don’t want doctors to keep to themselves. As the majority said in Tarasoff, “The protective privilege ends where the public peril begins.”
Yet we can’t expect mental health professionals to be clairvoyant, to look into a crystal ball and predict when and against whom a patient may become violent. As the amicus brief explained, although psychiatrists are dedicated to providing treatment for patients who pose a risk for violence, they can’t “accurately predict whether and when any particular patient will have a violent outburst, much less the target of that violence [when], as here, no threat of harm was made and no victim was indicated.”
Dr. Sandeep Jauhur, in an op-ed in the New York Times responding to the appeals court decision in Ashby, wrote:
Predicting when violence will occur or where it will be directed is difficult under the most straightforward of circumstances. When the threat is not articulated, it is next to impossible.”
Breaching doctor-patient confidentiality in situations where there isn’t a clear threat to specific individuals will likely be self-defeating, Jauhur observed. He worried that “mentally ill patients may not seek treatment, and psychiatrists, saddled with new legal liabilities, may decline to treat them.”
He concluded, “We are more likely to minimize harm if the confidence of patients at the greatest risk for violence is maintained.”
Let’s apply the foreseeable victim standard to an actual case to see how impractical it may be.
In 2009, George Sodini entered a gym outside of Pittsburgh, walked into an aerobics class and began shooting. He killed three women and wounded nine before he killed himself. His online diary, as well as notes at the scene and at his home, led the police to believe that Sodini was targeting women in general and not someone specific in that class.
Let’s suppose that, instead of pouring out his feelings into his blog, Sodini shared them with a psychiatrist. Suppose he told his doctor in their sessions how he hated women for constantly rejecting him, that he wanted them to suffer like he did, that he wanted them all dead.
Using the standard set in the Ashby case, would that psychiatrist have a duty to warn Sodini’s foreseeable victims and, if so, to whom would that duty apply—to specific women Sodini threatened? To any women who’d rejected him (assuming the doctor knew their names)? To all the women in his life, including neighbors and co-workers, who he could conceivably target as representative of their gender in general?
Although it would be prudent and reasonable to expect a psychiatrist in this hypothetical to warn any woman specifically targeted by Sodini, broadening the duty to warn to include any foreseeable victims—which could be literally any woman who crossed his path—is unreasonable and burdensome.
And it likely wouldn’t have prevented his ultimate massacre.
It’s easy to understand the Schiering family’s need for closure given that DeMeerleer killed himself and thus was never held accountable for his actions. They likely need to blame someone who’s still here and can be punished for what occurred.
But their need for closure and justice isn’t sufficient to justify this dangerous expansion of the duty to warn.
The Ashby case isn’t over. After all, a jury could still find that the Schierings weren’t foreseeable victims of DeMeerleer. But regardless of the ultimate outcome, the ramifications of the Supreme Court’s decision, at least in Washington State, could still be detrimental for the mentally ill, mental health professionals and society in general.
Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.