Mar 282015
 March 28, 2015  Posted by  Breaches, Healthcare

I wish the talking heads on TV commenting on doctors’ “duty to warn” would shut up if they don’t know what they’re talking about. Of course, they generally don’t realize that the information they’re giving out is legally incorrect.

And so I listened to a talking head firmly assert that Lubitz’s doctor had a duty to warn his employer, Lufthansa, if the doctor thought that Lubtiz was a danger to himself or others. The talking head seemed to be relying on a famous case here in the U.S., commonly referred to as Tarasoff. In Tarasoff, the court held that doctor-patient confidentiality needed to be broken if the patient posed a risk to a third party – and that the doctor had a duty to protect the third party. That duty could be fulfilled in one of a number of ways, but Tarasoff was based on a case where the patient had communicated intent to harm a specific individual. The court held that whether the intended victim had been named or not, there was enough information that the doctor could have identified and contact the intended target, or turned over the information to the police for them to pursue to protect the intended target.

That is a somewhat different situation than when there is no specific intended target. Consider the case of a teen who tells a therapist that he has already armed himself and intends to take out as many students at his high school as he can. In cases subsequent to Tarasoff, courts have held that the duty to protect also applies to groups or classes of people or the general public.

But it’s important to note that these duty to protect laws vary by state. Some states have mandatory duty to protect/warn,  others simply permit the health care professional to breach confidentiality to protect or warn, and yet other states have no laws on the books. For a summary of, and links to, relevant state laws as of January 2013, see this resource from the National Conference of State Legislatures.

Of course, the most important point is that it doesn’t matter what our laws are, and talking heads on news would be wise to either research the relevant laws in Germany or at least acknowledge that Germany’s laws are different than ours.  See this coverage in Time that quotes a German lawyer on the confidentiality obligations of German doctors.

It would be helpful to hear a panel of German mental health law experts discuss German law and whether a doctor’s duty to protect their patient includes taking steps to prevent them from harming themselves in cases where involuntary commitment might not be necessary or appropriate. In other words, if we frame the discussion not as a public safety exception but as part of our duty to care for and protect our patients, does that result in a different decision or permission to disclose?  German law, as other EU laws, is based on consent of the patient to disclose, but if the patient is so mentally ill that they cannot make an informed decision to consent or refuse consent, then what? I suspect that in Germany, it may not make a difference and consent would still control, but it’s a conversation worth having. If we have reason to believe that our patient is putting themselves at life-threatening risk or may put others at life-threatening risk, is it really ethical not to do anything if the patient refuses consent to disclose?

Note: I am not suggesting that Lubitz’s doctors had actual knowledge of his intentions. My discussion above is predicated on a scenario where a health care professional does have specific reason to believe that the patient may do something that wound endanger himself or others. 


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