Andreas Lubitz, Tarasoff and the duty to warn

Troubling evidence has emerged that Andreas Lubitz, the Germanwings copilot, may have been delusional and mentally unfit to work, much less fly a commercial jet carrying 144 passengers and a crew of 6, including himself. Reuters reports today,

The co-pilot suspected of crashing a passenger jet in the Alps may have been suffering from a detached retina but investigators are unsure whether his vision problems had physical or psychological causes, a German newspaper said on Sunday.

Bild am Sonntag also reported how the captain of the Germanwings Airbus screamed “open the damn door!” to the co-pilot as he tried to get back into the locked cockpit before the jet crashed on Tuesday, killing all 150 aboard.

Another German newspaper, Welt am Sonntag, quoted a senior investigator as saying the 27-year-old co-pilot Andreas Lubitz “was treated by several neurologists and psychiatrists”, adding that a number of medications had been found in his apartment in the German city of Duesseldorf.

Police also discovered personal notes that showed Lubitz suffered from “severe subjective overstress symptoms”, he added.

Lufthansa, the parent company of the budget airline, said the carrier was unaware of a psychosomatic or any other illness affecting Lubitz. “We have no information of our own on that,” a Lufthansa spokesman said.

The terrible crash and loss of life raises an interesting question: Whether and to what extent do mental health professionals have a duty to warn police and potential victims that a patient is a threat to their lives and safety. More specifically, should the mental health professionals treating Lubitz have warned Germanwings (Lufthansa) that he was mentally unfit to pilot one of its commercial aircraft?

I do not know European law on the subject, but I am familiar with U.S. law.

In Tarasoff v. Regents of the University of California, 551 P.2d 334 (1976), the California Supreme Court created a new cause of action in tort for the negligent failure of a mental health professional to notify the police and potential victim regarding a threat to harm or kill communicated by a patient to the mental health professional. Before Tarasoff, mental health professionals were prohibited by the therapist/patient privilege of confidentiality from disclosing threats to harm or kill others uttered by patients during treatment.

The unique facts and equities of Tarasoff compelled a majority of the California Supreme Court to ignore legal precedent and create a new cause of action against mental health professionals founded in negligence to compensate victims of violence committed by a patient under the care and treatment of a mental health professional who failed to warn the police and the victim of a threat to harm the victim uttered by the patient.

In Tarasoff,

An exchange student by the name of Poddar met another student, Tarasoff, at UC Berkeley. During one encounter, Tarasoff kissed Poddar. Poddar took the affections to be very serious, and once Tarasoff learned of Poddar’s feelings, she immediately told him that she was involved with other men and not interested in pursuing a serious relationship. As a result, Poddar became depressed, resentful, and stalked Tarasoff. Once Tarasoff left the country for a study session abroad, his condition improved, and he sought counseling from a psychologist at UC Berkeley. During their sessions, Poddar admitted his intent to kill Tarasoff. The psychologist, believing Poddar to be suffering from paranoid schizophrenia, requested that campus police detain Poddar and that he be civilly committed as he was a danger to others. Poddar was detained, but appearing rational, was released. Tarasoff then returned and Poddar stopped seeing the psychologist. Tarasoff was not warned of the threat posed by Poddar and eventually stabbed and killed her. Tarasoff’s parents sued the psychologist and other University employees asserting that they had a duty to warn Tarasoff or her parents of the danger she was in, and they were negligent in releasing Poddar without providing a warning.

The Court held that,

Therapists and other mental health professionals may not escape liability merely because the victim was not their patient. When a mental health professional determines that a patient presents a serious danger of violence to another, he or she is obligated to use reasonable care to protect the intended victim from the potential danger. This obligation, this duty, may require warning the police, the intended victims, or others likely to warn the victims of the danger.

After Tarasoff, many mental health professionals complained that a substantial percentage of their patients commonly expressed anger and even rage during counseling sessions. They raged against their spouses, family members, teachers, bosses and all manner of persons in positions of power and authority over their lives. Statements like, “I dream about killing [insert object of frustration and rage here],” were typical. Most of the time these statements were not intended as threats to kill by the patient and not perceived as threats to kill by the therapist.

After Tarasoff, therapists suddenly were concerned about their potential exposure to ruinous lawsuits, damage to their professional reputations and public humiliation, if they failed to report a threat that a patient later carried out. They realized that they were risking the loss of their careers every time they dismissed a threat as a figure of speech and declined to report it to the police. Many decided to report all threats, no matter how unlikely they believed that a threat would be carried out.

Although the CYA approach protected the therapist, it caused many problems for patients. Consider, for example, a patient’s frustrated statement to the therapist that the next time his boss insults him in front of others, he is going to kill him. If the therapist reports this statement to the police and to the boss, the boss likely will fire the patient, despite the patient’s claim that he never intended to carry out the threat.

Getting your patients fired from their jobs or divorced by their spouses as a consequence of your desire to eliminate your potential liability for failing to warn is an unacceptable, unprofessional and possibly unethical practice.

Therapists also lamented that the accuracy and reliability of predicting future violence was only marginally more accurate than flipping a coin and they complained that the Tarasoff Rule was forcing them to predict future violence accurately everytime they decided to risk not reporting a patient’s threat in order to protect the patient from suffering probable adverse consequences.

Law enforcement agencies also expressed frustration and concern that their ability to carry out their primary policing responsibilities was being compromised by having to investigate threats and warn the potential victims or their families about the threats.

Despite widespread sympathy and concern for the Tarasoff family and recognition that something needed to be done to prevent another tragic and preventable homicide, increasing numbers of mental health professionals in California, and other states whose supreme courts had adopted the Tarasoff Rule, began to question its wisdom and propose changes.

For example, the California Legislature passed a law immunizing mental heath professionals from civil suit for failing to warn or protect reasonably identifiable potential victims, so long as the mental health professional’s decision not to attempt to warn or protect was made in good faith. Other state legislatures soon passed similar laws.

Should the mental health professionals treating Andreas Lubitz have warned his employer that he was unfit to fly and a danger to everyone on that flight?

What do you think?

21 Responses to Andreas Lubitz, Tarasoff and the duty to warn

  1. Malisha says:

    Today’s news suggests that Lufthansa had information showing that Lubitz had experienced a bout of major depression, serious enough to keep him disabled for “months,” well before this flight. So now my question is NOT whether doctors had a duty to warn, but whether the airline had a duty to protect.

    It’s like those police departments who hire, retain and arm dangerously unbalanced officers and then act outraged when the survivors of their homicidal cops’ misdeeds complain.

    Don’t subject people to high risk of murder and you won’t have as much indignation to deal with after an “incident.”

  2. bettykath says:

    In this country commercial pilots are required to take a physical at least once a year, and, iirc, every six months with a doctor who has been approved by the FAA. But it’s up to the pilot to report all prescription or over the counter drugs being taken. There are several of each that will ground a pilot. Most cold medications are reasons for a temporary grounding. Psycho- whatevers are cause for grounding until the meds are no longer needed, good luck in proving it.

    The usual result is what happened to a friend of mine. He loved flying. He knew he had a problem but he refused to see a doctor or tell the flight doc about his symptoms. When he couldn’t ignore it any longer he went to a local doctor who diagnosed lung cancer and gave him 3-6 months. He self-grounded immediately. Well, almost immediately. He had a charter flight scheduled. He flew as a “passenger” in the second seat while his newly qualified son was pic, for safety and as support for his son. Odds of effective treatment were next to nothing, so he refused treatment. He died 3 months later.

    • What an awful quandary. I wonder if he had seen a doctor sooner, whether he might have survived?

      • bettykath says:

        The unanswerable question.

        He didn’t get checked sooner b/c he didn’t want to be grounded and he was afraid of what the dr. would say. Only really bad weather kept him from flying nearly every day except for his last three months.

  3. girlp says:

    Lubiz mental health problems were available only if he wished to reveal that he had any issues, Germany has the strictest privacy laws in Western Europe. The doctor would give the infomation to the patient and it is up to the patient to alert there job that they have a mental illness. The stigma of having a mental illness is a huge problem in Germany even worse than here.

    • Malisha says:

      A friend of mine is a Montessori teacher, headmistress of a Montessori School, in Germany. She has invited me to Germany several times. I have always been afraid to go to that country; it seems to me that it is some kind of psychic “storm center” that attracts a sort of Aberrant European Vibes (whether military, economic, political, or unidentified) that cluster there whenever some weird universal magnetic floobooz get together to grossly malfunction. Of course this is nothing more than a superstition upheld by a fear-induced prejudice, but it’s pretty damn strong. Whenever I admit it, I don’t know whether to laugh or cry. 👿

      • bettykath says:

        I’ve been to Germany several times, from one week to six weeks at a time. I enjoyed my time there. I know our family histories are quite different and that may be affecting your reticence, but I recommend you visit your friend. Being with your friend should help overcome your reluctance. Spring in Germany is beautiful.

      • gblock says:

        I’ve been on a couple of trips to Europe that included visits to Germany, and I enjoyed. For better or worse, Germans seem to have a very strong culture of rule-following.

  4. gblock says:

    I would hope that for jobs affecting the public safety in an obvious way, like a commercial airline pilot does, the candidate for employment would be examined for psychological as well as physical fitness before being given the job. Part of the question then becomes, how when would someone be required to be retested. Almost certainly, you wouldn’t expect retesting before every single flight.

    Let me turn the question around, also. If someone had developed a physical, rather than a psychological, problem, in what situations would that need to be reported to the employer? In many cases, I might argue that it is the employee’s duty to prerogative to report, and if they choose not to do so, let the chips fall where they may. (I would argue differently if fear of losing one’s job by reporting seemed to be a big issue.) However, for a job like airline pilot, if a physical condition might adversely affect the safety of others, should the doctor be required to report that also?

    • I think a physical problem generally will not represent a danger to others whereas suicidal ideation by a pilot would be more concerning, especially if accompanied by descriptions of dreams crashing a plane with passengers on board. I don’t know that Lubitz had dreams like that, or if he did, whether he told his psychiatrists about them.

      The duty to warn depends on the facts.

      • gblock says:

        It seems to me that a physical problem that affects ability to fully move around could affect safety for a member of a flight crew, especially in an emergency situation.

  5. Malisha says:

    Fitness for power. For instance, it would be better to require all kinds of testing BEFORE putting someone behind the wheel or behind a gun rather than having doctors become “mandated reporters of suspicion” after the fact. Before someone pilots the plane I ride in, I wish he or she had to take enough psychological testing to convince several doctors that he wouldn’t drive me into the side of a mountain.

    I read a case in Virginia — a custody case — where the father, a pilot for one of this country’s biggest commercial airlines, actually threatened to fly his fully-loaded passenger jet INTO THE PENTAGON if he did not get sole custody of his kids. THAT was not reported. THAT was printed on paper and submitted to a JUDGE (who, by the way, granted him unsupervised visitation, even after he talked about how he loved children and when unescorted kids were on his flights he would invite them into the cockpit to see what he was doing there!) but it was never used against him, either as a contestant for custody or as a pilot flying our airplanes. After reading that I never flew that airline again, EVER! When a plane DID go into the Pentagon on 9/11, my first thought was: “WAS THAT HIM?”

    If it had been, you can bet that Judge Quinlan Hancock of Fairfax, Virginia would have covered it up.

  6. Malisha says:

    Wow, this is a tough one. There is very little data, just based on what has been reported to the press. We know that Lubitz saw one or more psychiatrist/neurologist. We know that he apparently got a “no-work” note from a doctor covering the actual day of the fatal crash. But is that enough to know whether either or any professional was really remiss in NOT trying to stop this patient from flying? I can imagine that whoever wrote the “do not fly” note thought he had done whatever was needed. But the co-pilot did not follow medical advice.

    I’d want a lot more information before coming down on one side or another, for this one. What a horrible, intolerable mess!

    • From the NY Post,

      Lubitz was being treated by “several neurologists and psychiatrists,” according to the German paper Welt am Sonntag. Cops who searched his apartment in Dusseldorf found a variety of psychiatric medicines, the paper reported.

      Earlier reports said police found a series of doctors notes indicating Lubitz never should have been at the controls of a passenger jet. But Lubitz withheld information about his health from his bosses.

      Police in Germany and France say Lubitz’s mental health is the main focus of their probe of Tuesday’s crash.

      Lubitz crashed the plane the day after his girlfriend told him she didn’t want to see him anymore.

      • Two sides to a story says:

        If Lubitz had never expressed violent thoughts or tendencies to either the girlfriend or his doctors, then who would have thought he would crash a commercial airliner? However, if as police say, a series of doctor’s notes indicate he shouldn’t have been at the controls of a commerical airliner, then surely those doctors knew there was a danger and they should have notified his employer.

        However, there is that fine line between extrapolating that he might do something violent and weighing that against the reality that perhaps he’d never done anything violent towards others previously that might make both doctors and girlfriend feel safe in assuming that he’d manage to deal with his problems without self-destructing.

        After all, one can have deep rage toward another person due to various circumstances and work through it without ever harming anyone, so automatically alerting employers to cover one’s butt is also wrong.

        I guess you have to see the case from the inside out and have all the bits of information in hand that police, therapists, and girlfriend has in order to make an informed decision.

        However, I do condemn Lubitz for taking out 150 people along with himself. It simply isn’t right to murder others because you’re suicidal. Take yourself out if you must, not innocents who have nothing to do with your pain.

        May all beings be free of suffering.

        • However, I do condemn Lubitz for taking out 150 people along with himself. It simply isn’t right to murder others because you’re suicidal. Take yourself out if you must, not innocents who have nothing to do with your pain.

          I understand suffering and I understand suicide, but I do not understand the mass murder of strangers who have entrusted their lives to you.

          He told his girlfriend that he wanted to be remembered.

          Helluva way to be remembered.

          • Malisha says:

            It seems to me that there must be a way to weed out this kind of person from being a pilot, just as there must be a way to weed out a person like Darren Wilson from becoming an armed and dangerous cop. What our society (and I include Germany in our society inasmuch as it is Western European) has failed to do is to carefully weigh the prerequisites that should precede huge grants of POWER. Before you give unbridled POWER to anyone, he or she should really have to demonstrate fitness.

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