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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.
www.CherryCreekPsychology.com
www.Facebook.com/drmaxwachtel
www.Twitter.com/mwachtel

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