The psychotherapist who treated Bruce E. Ivins, the deceased suspect in the 2001 anthrax attacks, told a Maryland court on July 24 that her patient was a “sociopathic, homicidal” maniac who planned to kill his co-workers and that he had “attempted to murder several people” using poison as far back as 2000. Did she have to drop a dime on her patient, or could she have kept quiet?
It’s murky. The 1996 Supreme Court case Jaffee v. Redmond officially recognized psychotherapist-patient privilege in federal courts. That decision, concerning a police officer accused of excessive force who sought to keep his social worker’s notes out of a trial, states that “effective psychotherapy … depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts.” Patients, in other words, should feel secure that what they reveal in a clinical setting is between them and their psychologists. Although all states recognize some form of this privilege, 27 of them, including Maryland, require therapists to breach confidentiality if the patient poses a serious danger of violence to others. (In some other states, psychologists have explicit permission to warn the cops but aren’t obligated to do so.)
The exact nature of this requirement varies slightly from state to state, but the general formulation is that a mental-health professional must warn either the police or the potential victim if a patient makes a specific threat against an identifiable third party. That is, the patient has to be doing more than just blowing off steam (“God, I’m gonna kill my boss!”). He has to have an actual plan (“I’m going to buy a gun”) and an actual victim ("and shoot my neighbor”) in mind. But it’s up to the therapist to decide if the patient truly intends violence and is capable of carrying out the threat. Arguably, Duley could have kept quiet if she thought Ivins’ apparent plan to kill his co-workers was really just a fantasy.
The “duty to warn” concept dates back to the 1974 case Tarasoff v. Regents of the University of California. In Tarasoff, a patient told his therapist that he intended to kill a young woman who had spurned him. A couple of months later he did so, and her parents sued the therapist for failing to warn their daughter. The case ended up in the Supreme Court of California, which ruled that therapists have a “duty to warn” not just the police (which the therapist had done) but the potential victim as well. In a 1976 rehearing, the court replaced the phrase “duty to warn” with “duty to protect.”
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Explainer thanks Harold J. Bursztajn, co-director of the Program in Psychiatry and the Law at the Beth Israel Deaconess Medical Center; Michael Lamport Commons of Harvard Medical School; Harvey Dondershine of Stanford University;Thomas Gutheil, co-director of the Program in Psychiatry and Law at the Beth Israel Deaconess Medical Center; and Gary Zalkin.