Germanwings plane crash enlivens new debate about duty to protect

Other states have duties to protect and even duties to warn. Some have permissive but not required duties to protect or warn. Some have no such duties at all. So there are tremendous variations in such duties across the country with some states having no such duty at all.

According to a March 30 article in the Washington Post, Germany, in part in reaction to its Nazi past and the Communist past in East Germany, tries especially hard to limit intrusion into personal privacy. Although doctors in Germany can violate confidentiality for protective reasons, they can face steep legal repercussions if the confidentiality violations are later thought unwarranted. “Violations of medical privacy can carry criminal sentences of up to five years in jail.” Of course we do not know what the copilot told his psychotherapist or physician, but it is possible that fear of such penalties could intimidate professionals from taking a risk of notifying authorities since they face no penalty for opting not to report such information.

In contrast, California now allows confidentiality violations for protective reasons even for dangers that do not meet the duty to protect. It does not want psychotherapists to fear liability for notifying authorities in order to protect the public. California civil code 56.10 (19) in referring to release of confidential medical information now reads that information may be disclosed “if the psychotherapist in good faith believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.”

Although we do not know what the copilot told his psychotherapist, it is important to keep in mind that the psychotherapist’s duty very much depends on the country and jurisdiction. Some legal changes might be necessary, and there might well be better monitoring of those with a serious mental illness in highly sensitive positions, but it is important not to overreact in ways that increase the dangers by increasing the stigma of mental illness unjustifiably. Stigma can discourage those with mental disorders from getting the help they need and cause people to hide any evidence of illness. Furthermore, overly frantic efforts to protect the public could discourage needed treatment and end up putting the public at even greater risk.

Dr. Weinstock is health sciences clinical professor of psychiatry, David Geffen School of Medicine, University of California, Los Angeles. He also is immediate past president of the American Academy of Psychiatry and the Law, and has coauthored or edited several textbooks about ethical practices in forensic psychiatry.

Dr. Darby is a current resident in the UCLA Semel Institute for Neuroscience and Human Behavior psychiatry residency program and a graduate of the Perelman School of Medicine at the University of Pennsylvania. He received his bachelor of arts degree from Swarthmore College in Pennsylvania with a special major in psychobiology.