The Aurora, Colorado Massacre And The Psychiatrist-Patient Privilege — An Update

Prosecutors responsible for the case against James Holmes — the man charged with the massacre at a screening of The Dark Knight Rises in Aurora, Colorado — have decided to drop their effort to see a notebook Holmes allegedly mailed to a psychiatrist.

If the prosecutors had pursued a forced disclosure of the notebook, the case would have tested the application of the psychiatrist-patient privilege.  Prosecutors decided to avoid the delay that would result from such a fight and worked out an arrangement with the defense team instead.  Under the agreement, the defense will be allowed to review the notebook under circumstances that will ensure no potential evidence will be destroyed.  Then, if Holmes’ defense team raises his mental health during the trial, prosecutors will be able to review the notebook.

It would have been interesting to see how the privilege issue was resolved in a contested setting, but prosecutors should be presumed to know their case — and often an agreement is the best way to advance the ball.  If prosecutors can make their case without the notebook, let’s move forward to a speedy trial, to learn what really happened in that Aurora, Colorado movie theater.

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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.

A Parisian Protest

Today Richard and I were walking back from La Tour d’Eiffel when we ran smack dab into a protest march.  As with everything Parisian, it was done with great style and flair.  There was music, and drum beating, and people handing out fliers, and one of those giant dancing air-inflated guys that you see at car dealerships in the States.

It turns out that they were protesting some kind of psychiatric treatment issues.  My high school French is not great — more on that later — but it appears that there is a vote coming before the French National Assembly about psychiatric treatment and hospitalization.  And one of the signs was for electric shock therapy.  Do they still do that in France?

It was interesting to see this drum-beating, musical protest walk by, stopping traffic and provoking some of the French nearby to engage in arguments.  It is one of the things that makes Paris such an interesting city.  You never know what might lie around the next corner.