Andreas Lubitz, Tarasoff and the duty to warn

March 29, 2015

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?


Why was Gus Deeds released by the mental health facility?

November 21, 2013

Thursday, November 21, 2013

Good morning:

Why was Gus Deeds released by the mental health facility?

Austin “Gus” Deeds, 24, was released from a mental health facility on Monday after undergoing a mental health evaluation to determine if he were a danger to himself or to others. The evaluation occurred at the end of a prior emergency commitment.

He assaulted his father, Virginia State Senator R. Creigh Deeds, with a knife on Tuesday morning stabbing him in the head and upper torso multiple times.

Gus committed suicide by shooting himself with a rifle.

His father was airlifted to the University of Virginia Medical Center in Charlottesville where he is now listed in good condition.

The Washington Post is reporting today that,

officials initially said the reason he was not admitted to a hospital was that no bed was available. But multiple nearby hospitals later confirmed that they had available space but were never contacted.

The implication in this statement is that a mental health professional determined that he was a danger to himself or to others and would have been committed but for the lack of a bed.

Three issues are raised by this statement:

(1) whether a mental health professional (i.e., psychiatrist) evaluated Gus Deeds and concluded that he was a danger to himself or to others (the implication is that this happened); and would have involuntarily committed him to a secure mental health treatment facility, but for the lack of an available bed; and

(2) whether Gus Deeds was released without checking with other mental health facilities to determine if they had an available bed, which would be patient abandonment; and

(3) whether Gus’s father was warned that Gus was dangerous and if not, why not?

I have previously written about a mental health professional’s duty to warn others in Is the University of Colorado Potentially Liable to Holmes’s Victims? I said,

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 Tarasoffcompelled 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.

See also: Holmes: Does the Colorado Statute Bar Recovery?. Note that Virginia will have its own statute that may vary from the Colorado statute.

Virginia Governor Robert F. McDonnell (R) has ordered the Virginia Inspector General to find out why Gus Deeds was released.

“We’re going to investigate the circumstances that led up to Austin Deeds’s release at the expiration of the emergency custody order,” said G. Douglas Bevelacqua of the Office of the Inspector General.

Finally, please read this comment by Gytannia, a reader who commented regarding the Washington Post article:

Speaking from experience when someone who is mental “flips out”. It can happen very fast from calm to extremely dangerous. Like a light switch. The son could very well have been seemingly calm and cooperative all day Monday. This tends to convince the family that maybe they don’t need to be hospitalized. Especially a politician wouldn’t want public to know, so would put it off possibly. Then, when something in a conversation flips that switch or even if he sees something online, it’s game over for self control or decent behavior. While attacking, who or whatever is closest, it’s like watching a movie that you can’t stop, even if part of your brain is screaming to stop. Often the shame afterwards of acting like that and causing harm or fear to your loved ones is too much to take. Every time it happens, it takes another piece of your self worth, of self confidence, and soon you think you don’t “belong” among the “normal”. anymore. And you don’t want to harm your loved one..again. At the time, your brain refuses to think consequences or any rational thought, and there seems to be no solution short of drugs to make you drool into oblivion. Hence the suicide following the outburst. It seems that suicide is always the first thought after a big mental outburst of violence on a loved one.

We will have to wait and see the result of the Inspector General’s investigation, but right now the assault and suicide appear to have been preventable, but for the negligence of the mental health facility that released Gus Deeds.


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