The Aurora, Colorado Massacre And The Psychiatrist-Patient Privilege

Should the communications between a psychiatrist and her patient be privileged from disclosure to others, and are there instances when the psychiatrist should be obligated to report a potentially violent patient to the authorities?

The issue has arisen because news has leaked that James Holmes, the accused shooter in the Aurora, Colorado The Dark Knight Rises massacre, was seeing a psychiatrist.  It is reported that Holmes sent the psychiatrist, who is employed by the University of Colorado where Holmes had been a neuroscience student, a package of information that supposedly included a notebook that described a massacre.  Authorities seized a copy of the package, and Holmes’ defense lawyers are arguing that it should not be disclosed because it is a confidential communication between a patient and his psychotherapist.

Psychiatrist-patient communications are generally viewed as privileged, protected from disclosure, and not admissible as evidence in a trial.  The concept underlying the privilege is that we want psychiatric patients to be honest about their thoughts and impulses so they can be effectively treated; the argument is that if patient communications are routinely disclosed, patients will not be forthcoming when they talk to their psychiatrists and their treatment will suffer as a result.

However, the precise contours of the privilege are not clear, and even experts disagree about how it applies in specific circumstances.  It is generally accepted that if a patient communication contains a clear threat about committing an imminent violent act against the patient or others, the psychiatrist should alert the authorities.  But what is a clear threat of imminent action, as opposed to the delusional rantings of a disturbed individual who is undergoing treatment?  And if the communication is about past bad acts, should it always be privileged — even if it might help police solve crimes?

Horrible events like the Aurora shootings often produce unpredictable fallout that can touch and change different areas of the law.  In this case, one unexpected focus of attention might be the rules applicable to psychiatrists and their obligations to report the violent ravings of their patients.

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