Theater Shootings and Patient Confidentiality

Defense lawyers are arguing that prosecutors should be denied access to a package that theater shooter James Holmes sent to his psychiatrist. The matter did not come up at Monday's hearing, which was occupied with the state filing more than 100 charges against Holmes. Two murder charges were filed for each of the 12 who died.

A far more interesting question than whether the package is kept private is did his psychiatrist have any idea of what Holmes planned to do. If she did, should she have been obligated to inform authorities? Records showing how many times Dr. Lynne Fenton met with Holmes are sealed.

Even if she had reported his aberrant behavior, earlier massacre incident investigations have shown that would have been no guarantee that he would have been committed or taken from the public population in some way or even removed from the university. Therefore, the shootings might have occurred despite investigations.

Privacy laws in particular can make it difficult for everyone involved in a case to see all the relevant data. Also, it is expected that doctors' assessments of patients will be based on reasonable science, rather than reporting someone without a real basis for violating confidentiality.

Doctors also are in the risk assessment business. Ignoring the potential for a lawsuit could be costly. Only very narrow exceptions are allowed to laws guaranteeing confidentiality to doctor-patient relations. Child abuse and domestic violence allow exceptions to the confidentiality rule. In other cases, the issue varies from state-to-state.

In this case, virtually nothing is known of the meetings between Fenton and Holmes. That includes how many times they met, and whether she had made a diagnosis. In some cases, courts have held that a doctor would have an obligation to notify authorities only if a specific person were threatened.

In other cases, a threat to any third party was held to be enough to require notifying law enforcement if it appeared real.