Thursday, January 31, 2013

What Is Forensic Psychology?

Here is my first attempt at a video blog, where I answer the question, "What Is Forensic Psychology?" If you are interested, you can subscribe to my new YouTube channel at, or you can watch upcoming videos at Psych Law Journal.

I am not exactly sure why the screen capture has me hunched over as if in agony. I'm new to video production, so I'll try and get a little better at it as I go.

Thanks for reading/viewing! --Max Wachtel, Ph.D.

Tuesday, January 29, 2013

Two Cases Of Interest For The Aurora Theater Shooting: Tarasoff v. Regents of the University of California (1976) & Jablonski v. U.S. (1983)

Are mental health workers supposed to help their clients,
or do they have a duty to protect the public from harm?
Dr. Lynne Fenton, the Aurora theater shooter's former psychiatrist, and the University of Colorado Hospital are facing several lawsuits from victims and victims' families. I wrote about the challenges facing the plaintiffs' attorneys in a blog post here. Assuming the attorneys are able to convince the court to order Dr. Fenton to release the shooter's records, there are two key legal cases that will play a part in the success or the failure of the lawsuits.

Tatiana Tarasoff
First, is Tarasoff v. Regents of the University of California (1976). In this case, a UC-Berkeley student stalked, stabbed, and killed Tatiana Tarasoff, another student of the University. The murderer, who ended up getting off scott-free because of a technicality, had been treated for mental illness at the university's hospital. His treating psychologists failed to warn Ms. Tarasoff of the danger she was in. In 1974, the California Supreme Court ruled the university had a duty to warn her.

Two years later, the case made its way back to the California Supreme Court. At that time, the Court clarified its first ruling, and they found the university actually had a duty to protect Ms. Tarasoff. In the discharge of that duty, they stated the hospital should have notified the potential victim, called the police, and taken whatever steps that were "reasonably necessary under the circumstances." They further clarified that the university had a duty to break the killer's confidentiality in order to protect the potential victim. The most famous quote from this decision is, "The protective privilege ends where the public peril begins."

Prosenjit Poddar, Ms. Tarasoff's killer
One of the keys in the Tarasoff ruling was that the risk of violence must be such that the intended victim is in "foreseeable danger." More on that later.

The second case is Jablonski v. U.S. In this case, a man with a severe personality disorder and a history of rape and violence killed his girlfriend. The daughter of the girlfriend sued a hospital that failed to involuntarily hospitalize the man several weeks before the killing because they did not gather adequate information about him prior to making the decision to release him. The suit alleged the hospital also failed to warn the intended victim.

In this case, the trial court ruled the hospital was negligent for both above-mentioned reasons. The court ruled the hospital had an absolute duty to warn the girlfriend she was in foreseeable danger. On appeal, the Appeals Court affirmed the lower court's decision.

So, how do these cases relate to the lawsuits against Dr. Fenton? The Tarasoff decision would dictate that Dr. Fenton had a duty to protect potential victims from the shooter. Plaintiff's attorneys could argue she should have called the Aurora police and done more to escalate her concerns through the University of Colorado's emergency management system. She also could have had him involuntarily committed when campus police asked her if the shooter needed that level of care about a month before the shooting.

The tricky aspect with Tarasoff is that it is a California Supreme Court decision. Thus, it does not necessarily hold for different states. A defense attorney could argue there is no duty to protect spelled out in Colorado law the way it is in California. That is where the Jablonski decision becomes important. This was a decision through the U.S. Court of Appeals. Although it did not establish the duty to protect on the Federal level, it certainly established the duty to warn. And, the duty to protect, as it is described in the Tarasoff decision, has now become the standard of practice to which psychologists and psychiatrists are held, regardless of what state they work in.

The risk of harm is not always as foreseeable to
mental health workers as it is to this woman.
One final note: The attorneys who are suing Dr. Fenton have case law on their side, but they must prove one very important aspect regarding her treatment of the shooter--they must demonstrate Dr. Fenton knew, or should have known, there was "foreseeable danger." This will be a difficult task. First, most people who experience homicidal or suicidal thoughts never act on those thoughts. Plus, many patients will never tell their doctors about their homicidal thinking. Dr. Fenton will have had to have known about the shooter's homicidal ideation and believed it to be imminent enough that there was a duty to protect the public. Plus, she would have needed to know he had a specific plan against a person or a group of people (like a group of moviegoers).

Thanks for reading-- Max Wachtel, Ph.D.

Thursday, January 24, 2013

I'm Not Lying, I Was On Television This Morning!

I even have proof. I talked with Gary Shapiro and Kyle Dyer about Lance Armstrong's doping, Manti T'eo's fake girlfriend, and the psychology of lying. Here is a link to the video from 9 News:

Thanks for reading-- Max Wachtel, Ph.D.

Tuesday, January 22, 2013

I Am Writing A New Book And I Need Your Help

What ideas do you have for raising boys who
will have a positive impact on the world?

Like many people, I was horrified to read about the shooting deaths of five people in New Mexico yesterday. Gun violence, and violence in general, has been on the minds of many Americans since the gruesome Newtown school shooting, and the New Mexico killings were the latest reminder that something must be done.

In this case, a 15 year-old boy allegedly shot and killed his mother, father and three siblings. The youngest of his siblings was only 2 years old. It was reported that the boy had been angry with his mother and had been having homicidal and suicidal thoughts for months prior to the killings. He told police his eventual goal was to go to a Walmart and continue killing people until the police killed him. But, a courageous family friend talked him out of executing the second half of his killing spree. The full story is here.

Ever since the Aurora Theater Shooting, I have been thinking about what impact I might be able to have in curbing the violent acts of people with mental illness. I kept reminding myself that people with mental illness are no more dangerous than so-called normal people. And, these 'normal' people who are engaging in horrific acts of violence all have one thing in common: they are boys. At the very oldest, they are young men.

This gave me the idea to write a book, based on sound research, describing common-sense steps parents can take to raise boys in a way that minimizes the chance for later violence. In my more cynical moments, I thought of titling it How To Raise Boys Who Don't Kill. My new working title is How To Raise Boys Who Improve The World.

Here is where you come in: I have ideas on what to include in the book, and I have a solid outline of the chapters. I have started writing it as well. But, I need your input. What ideas do you have? Do you have any do's or don'ts for raising boys (of any age)? What has worked with your boys? What hasn't worked? Where have you succeeded? Where have you failed?

Any input would be greatly appreciated. Thank you for your time,

Max Wachtel, Ph.D.

Monday, January 21, 2013

The Aurora Theater Shooter's Psychiatrist Has Been In Trouble Before

Some doctors choose to become psychiatrists because of their passion
for working with individuals with mental illness. Other doctors choose
psychiatry because every other specialty has rejected them.

Psychologists like to tell a old joke with a new twist. Here it is:

Question: What do you call the person who graduates last in a medical school class?

Answer: Psychiatrist.

Don't get me wrong, I know a tremendous number of excellent psychiatrists. They are good, smart doctors who chose the field of psychiatry because of their passion to help individuals with mental illness. But, there is also a portion of the psychiatric community that consists of doctors who barely made it through medical school, and the only residency program they could get into after graduation was a second-rate psychiatry training program. The best students from medical school tend to choose high-profile (and high-paying) specialties. Psychiatry is sometimes seen as the lowest of the low.

Anyway, these bad doctors end up taking care of people, and they don't always do the greatest job. They lower the profession of psychiatry in the eyes of the public, and they make good psychiatrists look bad.

Enter Lynne Fenton.

She is the psychiatrist who treated the Aurora Theater Shooter prior to his withdrawal from the University of Colorado. There has been a lot of criticism over her treatment of him and her decision to refuse an offer from campus police to place the shooter on a 72 hour mental health hold one month before the shooting.

What few people know, though, is that this is not the first time Dr. Fenton has been in the middle of a controversy. Around 2005, state authorities contacted her because an employee of hers tried to write an illegal prescription in her name. She fired the employee and cooperated fully with the investigation. In the middle of the investigation, Dr. Fenton reported she had prescribed medication to an employee, her husband, and herself in the late 1990s. This admission was completely unprompted, and when asked follow-up information, Dr. Fenton reported she did not keep medical records for those encounters--she essentially gave out a small quantity of free sample medication (Xanax, sleeping pills, and pain killers) and did not give it a second thought.

In her telling of the story, Dr. Fenton essentially admitted she had no idea why her actions might be wrong. Aside from being illegal, there is a concept in the medical profession called Nonmaleficence--meaning, above all else, do no harm to your patients. By not taking a thorough medical history, skipping a physical exam, and not documenting the encounters, Dr. Fenton placed her employee, her husband, and herself at risk of harm. And she didn't even realize it was wrong. That almost seems worse than knowing it was wrong and trying to cover it up.

The Colorado State Medical Board essentially gave her a slap on the wrist. They made her promise never do it again, and they made her take some ethics classes. The whole incident is documented on the Colorado Department of Regulatory Agencies website. If you search for Dr. Lynne Fenton on Colorado's ALISON website, you can actually download the action filed against her license.

Who knows if a different psychiatrist would have been able to provide the theater shooter the medical treatment he needed to avoid the horrific tragedy in the summer of 2012. But it was Dr. Fenton, a member of the campus safety/emergency response team and a doctor with a history of poor decision-making skills, who was charged with his care. I don't know if she will get into trouble because of her actions (or inaction), but she is not doing the field of psychiatry any favors.

Thanks for reading-- Max Wachtel, Ph.D.

Thursday, January 17, 2013

Can Aurora Theater Shooting Victims Win A Lawsuit Against The Shooter's Psychiatrist?

You might think the Aurora Theater Shooter's psychiatrist is
partially to blame for the deaths of many innocent victims,
but that will be extremely hard to prove in court.
Dr. Lynne Fenton, the psychiatrist who treated the Aurora theater shooter for several months before he withdrew from the University of Colorado, has been sued. Chantel Blunk, the widow of one of the victims, sued Dr. Fenton, alleging she should have detained the shooter because she was aware of his dangerous tendencies.

Regardless of the merits of the case, this suit is going to be difficult for Ms. Blunk's attorney. In order to prove to a jury Dr. Fenton knew about the shooter's dangerousness and failed to act properly, the attorney is going to need access to the information that proves those allegations. In other words, the attorney will need the shooter's medical records.

But, that information is confidential and protected by law.

In the vast majority of malpractice lawsuits, the issue of confidentiality is moot. The law is clear: as soon as a patient sues his doctor, the patient waives legal privilege and the doctor is allowed to use the patient's medical records in his/her defense. The same is true if a family member of a patient sues a doctor--for example, if a son is convinced his mother's doctor killed her through a negligent act, he can sue the doctor and the deceased mother's medical records are no longer confidential for the purposes of the suit.

The reason for the existence of the above-mentioned laws is twofold. First, doctors need to defend themselves from lawsuits. If the records remained confidential, they would not be able to refute the charges in a public court. Second, when patients sue doctors, doctors may try to claim they cannot legally engage in the lawsuit because of doctor-patient confidentiality and thus, the lawsuit must be thrown out. By automatically waiving privilege, doctors are free to (and are forced to) defend themselves.

There is a catch in the case of Ms. Blunk's lawsuit against Dr. Fenton, though. Ms. Blunk's husband was not Dr. Fenton's patient. She is suing the doctor because a patient who has no relation to Ms. Blunk allegedly killed her husband. Ms. Blunk has no legal right to waive the theater shooter's privileged communication with his psychiatrist. Thus, Dr. Fenton's medical records are not automatically available for use in this case.

No doubt, Ms. Blunk's attorney will try to convince the judge that the theater shooter's records should be released. And, it is certain Dr. Fenton's lawyers will argue otherwise. It will be up to the judge to decide what is and is not released. And, if the medical records are not able to be entered into evidence, there will be very little for Ms. Blunk's attorney to use to prove her claim is legitimate.

One other potential catch to this case: the Aurora theater shooter may face a criminal trial in coming months. In that trial, Dr. Fenton may be compelled to testify (again, the judge in the criminal court must order her to testify and release records if the theater shooter does not give his consent). If she testifies in that trial, much of what she says and what is documented in the shooter's medical records may then become public.

Thanks for reading-- Max Wachtel, Ph.D.

Monday, January 14, 2013

The Supreme Court Makes It Harder to Detain Sexual Predators: Kansas v. Crane (2002)

What happens when a person with mental
illness cannot control his/her impulses?

In recent weeks, there has been a considerable amount of talk about how to improve the mental healthcare system so that people with mental illness who are dangerous get the treatment they need. Remember, most individuals with mental illness are no more dangerous than anyone else. But, when dangerousness is combined with mental illness, the threat of violence increases dramatically.

Colorado is toying around with the idea of lowering the standard for having someone involuntarily committed to inpatient treatment if he/she is mentally ill and potentially dangerous. But, the US Supreme Court may have something to say about that. Take, for example, the case of Kansas v. Crane (2002).

In 1993, Michael Crane was arrested for attacking a video store clerk in Leawood, Kansas, an exurb of Kansas City. In 1994, he was convicted of kidnapping, attempted rape, and attempted sodomy. The court sentenced him to 35 years to life in the state penitentiary.

In 1996, his conviction was overturned on procedural grounds, and Mr. Crane pleaded guilty to the lesser charge of aggravated sexual battery in 1997. The court sentenced him to three to ten years in prison.

Around 2000, Mr. Crane was rapidly approaching his release date, and the state did not know what to do. Kansas sought to keep him incarcerated indefinitely, claiming he was a sexually violent predator under the Kansas Sexually Violent Predator Act. The district court hearing the case agreed with the state and ordered Mr. Crane be civilly committed as a sexually violent predator. Mr. Crane's defense team appealed to the Kansas Supreme Court, who overturned the district court's ruling. They argued the Sexually Violent Predator Act was unconstitutional when applied to someone who merely has a mental illness, rather than "a volitional impairment." The Kansas Supreme Court ruled it must be proven a person is both 1. likely to "engage in repeat acts of sexual violence" and 2. has "an inability to control violent behavior."

Kansas brought the case to the US Supreme Court, who agreed to hear arguments in 2001. In 2002, the Court issued its ruling: Kansas needed to prove Mr. Crane had "a serious difficulty" in controlling his behavior in order to civilly commit him as a sexual predator. The Court was very clear that Kansas "did not need to prove total or complete lack of [behavioral] control." As such, the Court remanded the case back to the Kansas State Court System.

Mr. Crane's case went back to Kansas. His defense team successfully argued he was not a sexually violent predator, due to his ability to control his behavior. He was released from prison in 2002.

Guess what happened next?

On March 22, 2003, Mr. Crane was arrested for raping a woman in her car in Kansas City, Missouri. He was charged with three counts of forcible sodomy, along with forcible rape, assault, and kidnapping.

Although predicting future violence is not an exact science, it seems reasonable to assume Michael Crane's particular mental illnesses (along with a lot of other information about him not known to the general public) would have pointed to the fact that he was highly likely to act in a sexually violent manner if released from prison. But, we live in a free society--one that values individual liberty. It does not always seem right to incarcerate a person indefinitely because he might be dangerous in the future, essentially considering him guilty before he even commits a crime. This is a difficult line to walk, but we must have the conversation--weighing individual freedom against the good of society--if we are to tackle the issue of violence in our culture.

Thanks for reading-- Max Wachtel, Ph.D.

Friday, January 11, 2013

My Interview on Colorado Public Radio

Will lawmakers work together on the issue of
gun violence, or will they punch each other?

Recently, Colorado Public Radio asked its listeners to share thoughts on gun violence, mental health care, and what to do about individuals who may be at risk of harming others.

For my part, I spoke about a little known law in Colorado that allows people to petition the court for a mental health evaluation for a loved one if it is suspected the person might have a mental illness and might be dangerous.

Here is a link to the radio story: Can Lawmakers Prevent Mass Shootings?

I would like to offer a special thanks to Lee Hill and Ryan Warner, the two journalists at Colorado Public Radio who helped me spread the word about this law.

Thanks for reading-- Max Wachtel, Ph.D.

Tuesday, January 8, 2013

Colorado: What To Do If Someone Needs Mental Health Care But Refuses It

There has been a lot of talk recently about the need to improve the nation's mental health system and to identify individuals who are at risk for violence before they act on their aggressive impulses. I agree that changes must be made and funding must be increased. But, there is already a little-known law on the books in Colorado that can have a huge impact now.

If you know of an individual--a family member, a friend, a co-worker, a neighbor--who you fear may have a mental illness and may be dangerous, there is something you can do about it. You can actually take the initiative to get the person evaluated, even if he or she does not think there is a problem.

It is possible to ask a judge to issue an order for an individual to undergo a mental health evaluation against his/her will. According to Colorado Revised Statutes § 27-65-106, any person can request that a court order a mental health evaluation of an individual who is suspected to have a mental illness and is a danger to self, a danger to others, or gravely disabled (for example, a person with dementia who lives alone and continually forgets the turn off the stove, running the risk of blowing up the house).

That is right--any person who suspects someone has a mental illness and is dangerous can ask the court to order an evaluation. The key is that you must suspect the person is both mentally ill and dangerous. There are plenty of mentally ill individuals who refuse treatment but are harmless. They would not qualify under this law.

Here are the necessary steps, if you are thinking of asking the court to order an evaluation for someone you know:

1. You need to send the request to the correct court: It must be done in the county where the mentally ill individual is living or is currently located (for example, if the person has an apartment in Denver but is staying with a friend in Centennial, you would petition the court in Arapahoe County, not Denver County). You can find contact information for the Colorado Court System here.

2. The petition must be in writing.

3. The petition must contain your name and address, along with your interest in the case (in other words, you must explain why you care about the individual--you are a relative, or an employer, or a friend).

4. The petition must also contain the name of the person you want to have evaluated. If known, you should also include the person's address, age, gender, marital status, and occupation.

5. In the petition, you must include "allegations of fact indicating that the respondent may have a mental illness." In other words, you must include your reasons for thinking the person is mentally ill. Be specific in your allegations--the person cries all the time, he talks about dying, she is angry, he talks to voices only he can hear, etc.

6. The petition must also include the reason why the person's mental illness causes him/her to be a danger to self, a danger to others, or gravely disabled. Again, be specific: He talks about suicide, she has been getting more and more physically aggressive with her family, his coworkers have talked to HR about how they are afraid of him, she uses illegal substances, he just bought three guns, etc.

7. If the information is available, you should include the name and address of all people who are legally responsible for the care of the person (like parents or guardians).

8. The petition should also include the name and address of the person's attorney, if he/she has one. If the person does not have an attorney (which is almost always the case), you should write whether, to your best knowledge, the person "meets the criteria established by the legal aid agency operating in the county or city and county for it to represent a client." If you know this information, great. If you don't, you can write the following statement:

"To the best of my knowledge, I do not know if [my sister/brother/employee/cousin/etc.] meets the criteria established by the legal aid agency operating in the county or city and county for it to represent a client."

After the petition is submitted, the judge can appoint an evaluator and order a mental health evaluation. Typically, a licensed community mental health center employee goes to the person's home (with law enforcement) and conducts the evaluation. That evaluator then provides a report to the court, and if the court believes there is probable cause that the person has a mental illness and is dangerous, it can order the person into involuntary inpatient treatment for up to 72 hours. After that, there are legal procedures the inpatient unit can use to keep the person longer, if needed.

An important to note: if the licensed evaluator thinks the person poses an immediate risk, that evaluator can have the person hospitalized against his or her will for up to 72 hours immediately (without having to wait for the court to receive the report, order the inpatient treatment, and have a sheriff's deputy transport the person to a hospital).

It is up to all of us to help those we care about get the treatment they need, even if they don't want to accept it at first. And, although the vast majority of individuals with mental illness are not dangerous, some are. Using this law to help those potentially dangerous people get into treatment can be one way to avoid a another tragedy before it occurs.

Thanks for reading-- Max Wachtel, Ph.D.

Friday, January 4, 2013

School Shootings: What Are The Odds, Part III

In Part I of this series, I estimated the likelihood of a school shooting taking place at a particular US school in any given year. In Part II, I estimated the likelihood of at least one school shooting taking place at any school in the US in any given year.

In Part III, I will attempt to calculate the odds of a particular US student being shot and/or shot and killed in a school shooting in any given year. Here are the numbers:

In the last 13 years, there have been roughly 55.5 million students in K-12 schools in America each year (including public and private schools). This number comes from the 2011 census estimates. As the US population has grown in the last decade, it is likely 55.5 million is a bit of an overestimate for the earlier years. Using this number will then slightly underestimate the odds of a shooting or killing.

Following are the numbers of students who have been wounded or killed in school shootings in the US in the last 13 years (note: more people than this have died in US school shootings, but I am only focusing on students, not administrators/teachers. I am also excluding the killers):

Data from
There are roughly 38.8 million students in US K-8 schools and 16.4 million US students in 9-12 schools (exact numbers at Using the appropriate weighting, the average risk of a particular US student being shot at school in any given year is as follows:

Student of any age: 1 in 7.8 million
K-8 Student:            1 in 14.4 million
9-12 Student:           1 in 3.7 million

The average risk of a particular US student being shot and killed at school in any given year is as follows:

Student of any age: 1 in 15 million
K-8 Student:            1 in 18 million
9-12 Student:           1 in 10.6 million

As always, these odds are merely estimates based on readily available statistics. In no way are they completely accurate. What they indicate, however, is it is extremely unlikely that any one particular student will get shot while at school in a particular year.

But, keep this in mind: Even though your child probably won't get shot, the chances of someone's child getting shot at school in the next year is extremely high (around 85-90%).

Thanks for reading-- Max Wachtel, Ph.D.

Wednesday, January 2, 2013

What Do Drunk Driving And The ADA Have In Common?: Pennsylvania Department of Corrections, Et Al. v. Yeskey (1998)

According to, New Year's Eve is not the worst night for drunk driving arrests in the United States. That dubious honor belongs to Thanksgiving. Regardless of the date though, driving while under the influence of alcohol is a huge problem--nearly 40% of auto fatalities involve alcohol, and almost 30% of Americans will be in some sort of alcohol-related accident at some point in their lives.

Enter Ronald Yeskey. In 1994, he was arrested for driving drunk. Adding to his problems, he attempted to avoid arrest by running from the police. He was quickly convicted of drunk driving, escape, and resisting arrest. His trial judge sentenced him to 18-36 months in a Pennsylvania prison. The judge recommended the Department of Corrections place him in the Pennsylvania Motivational Boot Camp, which was a program focused on rehabilitation that was less prison-like than most other DOC settings.

The Pennsylvania DOC refused to allow Mr. Yeskey admission to the boot camp program, though, citing his hypertension (high blood pressure) as the reason. They argued that boot camp was physically strenuous, and Mr. Yeskey's physical condition would keep him from being able to safely complete the program.

But, the state of Pennsylvania forgot the Federal Government enacted the Americans With Disabilities Act just four years earlier. Mr. Yeskey sued the State DOC, stating they were in violation of the ADA.

The Pennsylvania DOC argued the ADA did not apply to boot camp programs administered by state prisons. The trial court agreed with the DOC, and Mr. Yeskey lost his suit. He appealed to the Third Circuit Court of Appeals, who reversed the trial court's decision, meaning they found Mr. Yeskey's rights were violated under the ADA.

The Pennsylvania Department of Corrections then appealed the decision to the US Supreme Court, who agreed to hear the case. In 1998, they affirmed the Appeals Court's decision, thus issuing the final word on the matter--The Americans With Disabilities Act clearly applied to state prisons.

The Court's ruling was unanimous, and Justice Scalia (who is no friend to criminal offenders, or any law that he sees as reshaping the Constitution) wrote, "(1) state prisons fall squarely within the definition...of a 'public entity' subject to Title II [of the ADA], (2) the text of the ADA provides no basis for distinguishing the recreational activities, medical services, and educational and vocational programs provided to prison inmates from the 'services, programs, or activities' provided by other public entities that are subject to Title II, (3) Title II's requirements and 'participation' in programs, does not exclude prisoners who are being held against their will, and (4) the failure of the ADA's statement of findings and mention prisons is irrelevant in the context of an unambiguous statutory text."

In essence, the US Supreme Court argued the language in the Americans With Disabilities Act was so clear (even if Justice Scalia's writing wasn't clear at all) that it obviously must apply to prisons, and it obviously must apply to people who have done very bad things. Disabled US citizens retain their right to reasonable accommodations, even when they have broken the law and are serving a prison sentence. Since hypertension is a condition covered under the ADA, the Pennsylvania DOC had no choice but to allow Mr. Yeskey into the boot camp with special monitoring and accommodations for his high blood pressure.

Thanks for reading-- Max Wachtel, Ph.D.


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