Germanwings plane crash enlivens new debate about duty to protect
As of this writing, there is much speculation in the press regarding the Germanwings’ copilot’s mental illness, with the implications that taking antidepressants or being depressed should be sufficient reason for a pilot’s never being allowed to fly or get a license to fly.
There is evidence that the airline knew that the copilot, Andreas Lubitz, had a history of depression, and had “suicidal tendencies” in the past, but it is unclear whether that meant suicidal thoughts just crossed his mind or he was seriously contemplating a suicide plan.
(German prosecutors report that searches on suicide were conducted on his computer in the days before the crash, suggesting that he had been considering and likely planning suicide in the preceding days.) Being depressed alone though, without serious thoughts about suicide if he were thought to be well-controlled with antidepressants without excessive sedation, would not necessarily mean that he was unfit to fly. But there might be questions about the adequacy of monitoring his mental state by those able to assess such risks, though suicide cannot always be predicted, especially if patients hide such intent.
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Preliminary reports indicate that Mr. Lubitz was seeing a psychotherapist and a physician in the time before the crash. We do not know what he told them. It is not clear whether he was seeing a psychiatrist. It also looks as if the airline was made aware of the copilot’s past psychiatric problems before hiring him. It does appear that he recently feared losing his job, and it is possible that that might have affected his actions.
Although someone currently suicidal or homicidal undoubtedly should not be allowed to fly, there is no evidence at this time that the pilot communicated to anybody his intent to fly a commercial plane with passengers into a mountain. No mental health professional can adequately assess the risk a patient poses without information from the patient or another reliable source.
Legitimate questions remain whether more could have been done to minimize the risk or whether there were warning signs that should have warranted further evaluation and risk assessment of the copilot. Questions also can arise about what kind of monitoring is needed of those with a history of mental illness working in high-risk jobs such as piloting planes. But currently, there is a serious risk in Germany and even in the United States now of an overreaction to this tragedy that can increase danger by discouraging those with mental illness from getting help.
It has been reported that Mr. Lubitz had a note in his home from his doctor excusing him from flying on the date he crashed the plane. It was not submitted to his employer and he flew anyway. We do not know what the basis for the letter was or what specifically he told his psychotherapist. But the incident nonetheless raises questions about a psychotherapist’s duty to protect in both Germany and the United States. It is important to know that the laws and responsibilities of psychotherapists and physicians in Germany are not the same as those in the United States. In addition, the laws governing the responsibilities of psychotherapists differ even in the United States from one state to another.
The Tarasoff case itself creating the duty to protect in the United States originated in California. The 1974 decision of the California Supreme Court created a duty to warn. But 2 years later in 1976, the duty was changed to a duty to protect potential victims with warning potential victims and notifying the police being solely ways to satisfy the duty to protect. The 1976 decision found potential liability if a psychotherapist knew or should have known that the patient was dangerous. Since the “should have known” language opened up liability for failure to have a crystal ball to accurately predict the future, laws were passed in California and in many other states limiting liability to situations in which a serious threat was made to an identifiable victim.
For some reason, despite the original Tarasoff duty in California being a duty to warn for only 2 years from 1974 to 1976, the Tarasoff duty often was still erroneously referred to as a duty to warn. The ambiguous immunity statute referred to a duty to warn and protect, and this phrase was interpreted to mean the warn part of the duty could be satisfied only by warning. As a result, legislation was passed clarifying that the duty is to protect in California and not to warn. Warning the victim and notifying the police does, however, confer immunity from liability.
