Holmes: Does the Colorado Statute Bar Recovery?

I decided to follow-up with another article about Tarasoff because it is a wonderful teaching example regarding how the law changes in response to changes in society.

As I stated yesterday, the California Supreme Court created a new rule of law in Tarasoff to provide a legal remedy for the family of the young woman whose tragic death could have been prevented, if only the mental health professionals who were treating the man who stabbed her to death had warned her, her family, or the police that he told them he was going to kill her.

Prior to Tarasoff, mental health professionals were required to keep all communications with their patients confidential. The law recognized the importance of protecting the confidentiality of those communications by creating the therapist-patient privilege.

But what happens when the patient tells his therapist that he is going to kill a woman who rejected him and he identifies her by name? That was the question posed by Tarasoff and we know how the California Supreme Court answered that question.

Let us now take a look at how this decision affected mental health professionals.

Many of them reported 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.

But not all threats were benign and every once in awhile a patient would attempt to kill or actually kill the object of his frustration and unhappiness. That happened in Tarasoff.

Prior to Terasoff, distinguishing between a patient’s threat to kill as a figure of speech versus the expression of actual intent to kill was important, but not a job requirement. That changed after Terasoff.

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.

The Colorado Legislature adopted a different approach to solving this vexing problem:

§ 13-21-117. Civil liability – mental health care providers – no duty

A physician, social worker, psychiatric nurse, psychologist, or other mental health professional and a mental health hospital, community mental health center or clinic, institution, or their staff shall not be liable for damages in any civil action for failure to warn or protect any person against a mental health patient’s violent behavior, and any such person shall not be held civilly liable for failure to predict such violent behavior, except where the patient has communicated to the mental health care provider a serious threat of imminent physical violence against a specific person or persons. When there is a duty to warn and protect under the circumstances specified above, the duty shall be discharged by the mental health care provider making reasonable and timely efforts to notify any person or persons specifically threatened, as well as notifying an appropriate law enforcement agency or by taking other appropriate action including, but not limited to, hospitalizing the patient. A physician, social worker, psychiatric nurse, psychologist, or other mental health professional and a mental health hospital, community mental health center or clinic, institution, or their staff shall not be liable for damages in any civil action for warning any person against or predicting a mental health patient’s violent behavior, and any such person shall not be subject to professional discipline for such warning or prediction. For the purposes of this section, “psychiatric nurse” means a registered professional nurse as defined in section 12-38-103(11), C.R.S., who by virtue of postgraduate education and additional nursing preparation has gained knowledge, judgment, and skill in psychiatric or mental health nursing. The provisions of this section shall not apply to the negligent release of a mental health patient from any mental health hospital or ward or to the negligent failure to initiate involuntary seventy-two-hour treatment and evaluation after a personal patient evaluation determining that the person appears to have a mental illness and, as a result of the mental illness, appears to be an imminent danger to others.

The Colorado rule focuses on (1) tightening the definition of “threat” to reduce the universe of statements that trigger a reporting obligation as well as (2) imposing a requirement that potential victims must have been specifically identified by the patient who makes the threat.

Just when you thought the problems were solved, however, Mr. Howell said something disturbing that alarmed his psychiatrist, Dr. Lynne Fenton, and she notified the threat evaluation team about it, but they apparently did nothing.

We now have 12 people dead and 58 injured.

Now let’s take a look at the Colorado Rule and see how it affects the potential legal remedies of the families of the 12 homicide victims and the 58 shooting victims who survived Mr. Howell’s shooting rampage.

The Colorado Legislature appears to have created a legal “remedy” that may bar recovery because the 70 victims may not have been, “specifically identified” by Mr. Holmes and his threat, assuming he communicated a serious threat to Dr. Fenton, may not have satisfied the “imminent” requirement.

I feel obliged to point out that we do not even know if the subject matter of Mr. Holmes statement to Dr. Fenton constituted a serious threat and, assuming that it did, we do not know if it concerned a possible shooting in a movie theater.

Nevertheless, I think the Colorado Legislature needs to revisit the drawing board because this statute is so restrictive that it will necessarily preclude lawsuits on behalf of innocent people killed or injured by violent patients.

13 Responses to Holmes: Does the Colorado Statute Bar Recovery?

  1. La Luna says:

    “cookfoodgood” ~ “Things like fairness, justice, protecting citizens just ain’t in it.” Agree!

    And the pattern is becoming well established with each occurrence; mass murderers most often have a psychiatric history, and are prescribed medications to treat their mental illness. Labeling of these meds often warn about the potential for suicide or violence. In this instance, it will be interesting to learn who might have dropped the ball.

    I’d argue that psychiatry isn’t a science; treatment is often trial and error, not to mention that an uncooperative patient may fail to regularly take his meds. The data and evidence are piling up….there is an opportunity with each instance of mayhem for law and medicine to come together to clearly define how mental illness / insanity exists in overlapping circles in the context of criminal acting out.

    Thank you, Fred, for putting up the CO statute; if any good comes from this horrific event, it will be the focus of well-intentioned lawmakers to interpret and make provisions for all future occurrences.

    • lynp says:

      I will be very surprised if Holmes was on any medication let alone suffering from anything but the demons in his own head. G-d created medication to help us, make us better. When we were doing herbs, nuts and berries to treat illnesses, the life expectancy rate was around 45 -50 years. Only the advent of modern medication and improved techniques have increased us to an average lifespan of 78 years.
      I think Colorado University Crisis Assessment Team dropped the ball by not investigating his actions or utterance but at the very least, notifying the Police that there was a threat in the community midst. Can’t error on the side of conservatism. A visit from the Police to Holmes’s apartment would have told the tale before 70 people were killed and wounded. Holmes was only in the Community cause the University brought him there. Sadly, the University appears to have abandoned any responsibility for him when he developed mental illness and became a serious threat.
      Professor, if it is true that exercizing the brain to prevent debilitating degenerative illness such as Alzheimers is true, I can only note that your thought provoking articles really help keep my brian bright and alert.

      • La Luna says:

        While lives can never be restored, especially to the young mother who lost her 6 year old daughter, miscarried and is paralyzed. let’s hope the justice system can provide a modicum of comfort.
        Whether Holmes is deranged in addition to being criminal, let’s also hope the university and their representatives will be held accountable.

    • Nef05 says:

      There was an effort made in the US and the UK, within the last decade, to look at legislating mandatory prescription medication for specific mental illnesses (schizophrenia was among them).

      IIRC, it was being looked at as an offshoot of Kendra’s Law (NY), where a series of violent schizophrenic episodes (by different schizophrenics) resulted in the deaths of innocent bystanders (you might remember a couple different people were pushed into the path of NY subway trains). Kendra’s Law allows for mandatory out-patient psychotherapy, but does not have a prescription mandate. Later incidents, in both countries, were believed to have a strong correlation to the lack of prescription treatment progam management.

      It was believed that schizophrenics would either stop taking their meds because of the side effects or they would believe themselves “cured” because of the efficacy of the prescription treatment, and stop taking their meds. Needless to say, the symptoms of their illness would soon return, and the problems along with them.

      Of course, the effort hasn’t gone beyond the discussion point. Though, I believe with the UK’s health program, they would have a much better shot of actually pulling such legislation off, in a practical sense. As a US citizen who firmly believes all my fellow citizens have the protection of the constitution, I’m of two minds about this. I don’t believe anyone should be forced to take medication against their will. Where is the line drawn? OTOH, not wanting myself or my loved ones to be pushed in front of a subway train or shot and killed in a movie theatre or in the vicinity of a function serving the American political process, serves as an increasingly compelling argument. It’s a pretty awful choice anyway you look at it.

      • aussie says:

        In Australia there is a mandatory drug scheme for heroin addicts who have been brought before the courts, as part of their probation. They must attend the methodone clinic and take their methodone (supervised) and the police can go after them if they fail to show up.

        So there is a precedent, although this is for people who’ve broken the law, not just happen to suffer from an illness. But we also have a scheme for those requiring tuberculosis medication and I think that is also compulsory (though going to get diagnosed is not).

  2. cookfoodgood says:

    Professor, you’re overlooking the reality of modern politics.

    State legislatures have two primary functions. The first is to ensure that insurance companies do not pay claims for anything, ever. The second is to ensure that every mentally ill person with a sense of victimization is armed.

    In those state with a Republican governor and legislature, the legislature has a third responsibility; restricting voting rights.

    Things like fairness, justice, protecting citizens just ain’t in it.

  3. crazy1946 says:

    Was the relationship between Dr. Fenton and Mr. Holmes, one of Dr. and patient? Or was it teacher and student? I suppose what I am asking is was this a paid professional relationship or something less formal? If she was treating/advising him on a non professional basis does the law apply in the same way?

    • Chi says:

      I asked a similar question yesterday, has it been confirmed Holmes was a patient? I noticed that Holmes defense claimed there was a doctor-patient confidentiality, but due to the gag order there is no other info that I know of… Fenton herself has not confirmed anything.

      Is the defense assuming Holmes was a patient? Is that something Fenton would be required to confirm for them?

      • crazy1946 says:

        I would expect the defense to claim a professional relationship, due to what can only be assumed (I hate that conscept but) to be damaging information contained in the package(s) sent to Dr. Fenton by Mr. Holmes. I suppose it will be up to the court to ultimately determine what the scope of the relationship consisted of? If I am wrong, I am sure that someone will jump in and correct my words, so feel free to do so!! I would be curious to know if any protections are given to private communications that could be applied to protect the individuals involved in this case?

    • Due to the gag order, I do not know for certain if he was her patient or just an acquaintance whom she knew at the Medical School.

      I suspect he was her patient because, in addition to her teaching duties as a professor in the Medical School, she runs the Student Mental Health program and she specializes in the diagnosis and treatment of schizophrenia.

      I suspect he may have sought treatment at Student Mental Health when he started to experience the symptoms of schizophrenia.

      The bottom line is I do not know and am unlikely to know until the gag order is lifted.

      • crazy1946 says:

        Is there a possibility that she was the professor in one of the programs that he was enrolled in and during the course of that process she became more than just an instructor, but a friend as well? Then as a friend she realized that he was having a mental problem and as such she was attempting to help him as a friend and not as a professional, and as such not treating him in a formal structure? Or in this case would it be impossible to seperate the status of friend versus professional as it applies to this case? Part of my question has to do with the right of possession and disclosure in regards to the package(s) she received from Mr. Holmes and the potentially damaging (to the defense) content. Does the law deal the same with information she received as a private person versus what she had received as a paid professional?

    • Nef05 says:

      Interesting question. English professor and renowned poet Nikki Giovanni was certainly not considered in any way liable for the VA Tech shooting, after threatening to resign if the shooter was not removed from her seminar due to student complaints and student/teacher interaction in which she claimed to have tried to stop inappropriate behaviors (when you have an acclaimed poet tell you to stop writing your “weird” poetry, you’ve got a problem).

      But, every article I’ve read has stated Holmes “was under the care of” which is a professional health (medical/mental) relationship. As such, and by having made the initial contact with the threat-assessment team, she holds the ethical/legal responsibility, so far as she knew (as was mentioned, was there a specific threat, and if so, were there identifiable victims).
      I believe the difference in degrees, makes a difference, as well. An English professor is not going to be held to the same standards as a medical/psychology professor. Their legal repsonsibilities are not only held towards the school, but within their own licensures.

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