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Dr. Appelbaum Replies

To the Editor: Dr. Leeman is correct to point to continuing "pressure on psychiatrists to report behavior that may be harmful to others." Sometimes that pressure has been manifest in statutes defining situations in which physicians and others must report various forms of abuse (e.g., child abuse, elder abuse, abuse of disabled persons). Other times, it has been the courts that have expanded obligations for psychiatrists to protect potential victims, as in the group of cases that derive from the California Supreme Court’s decision in Tarasoff.

It is worth noting, however, that the evolution of psychiatrists’ duties to prevent harm to third parties has not been unidirectional. Courts have often shied away from adopting more broadly framed duties, and legislatures in many states, by creating statutorily defined obligations, have restricted the circumstances in which such duties may apply. Evidence suggests that even before Tarasoff, psychiatrists saw themselves as having an obligation to prevent harm by their patients, when that was possible. And, as Dr. Leeman notes, both the profession and our patients seem to have acclimated to rules requiring psychiatrists and other mental health professionals to act when a substantial risk of harm exists (1).

Indeed, the case that Dr. Leeman previously reported of a substance-abusing school bus driver demonstrates that the rules we live with, in general, are both flexible and appropriate. The decision not to breach confidentiality in that case was reasonable not, as the authors suggested, because any victims of the driver would be unidentifiable in advance. Rather, the clinical evidence suggested that the patient, who avoided substance abuse on workdays and seemed highly motivated to retain his job, did not appear to present a sufficiently substantial risk to warrant reporting or other action. Based on existing legal rules, this is an entirely defensible decision.

Although the duty to report and protect potential victims of our patients can present difficult dilemmas in a small number of cases, the major threats to patients’ privacy these days, as I suggested in my article, derive from efforts such as those in the current federal Health Insurance Portability and Accountability Act regulations to facilitate access to all patients’ medical information for non-treatment-related purposes.

Reference

1. Appelbaum PS: Almost a Revolution: Mental Health Law and the Limits of Change. New York, Oxford University Press, 1994

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