Like many, I’ve been watching and reading the media for insights as to what happened and whether a tragedy could have been avoided. And as a privacy advocate, I’ve spent some time mulling over whether federal privacy laws such as FERPA and HIPAA may have become obstacles to the shooter’s psychiatrist preventing this tragedy.
Sadly, the level of interviews I’ve seen on TV has been pretty abysmal. The worse was a CNN interview involving Dr. Drew Pinsky who seemed to have no knowledge of relevant federal and state laws as they might interact in this case.
If you’re going to interview people, how about finding someone who actually has expertise on HIPAA, FERPA, Colorado law, and medical ethics? Or if you can’t find one professional with all those qualifications, bring two people together and let them interact.
In any event, here are the questions I wish the media would ask of knowledgeable experts:
1. Dr. Fenton reportedly referred her concerns to the university’s threat assessment team in June. Might she have been more likely to notify authorities, his parents, or arrange for an involuntary commitment if she hadn’t sought the opinions of others? And doesn’t the treating psychiatrist still have an ethical and legal obligation to pursue her concerns via notification and/or involuntary commitment even if the threat assessment team does not agree?
2. If the threat assessment team did not conclude there was a serious or imminent threat in June, did the psychiatrist contact them again in July?
3. Do we know if the psychiatrist attempted to persuade Holmes to admit himself for psychiatric treatment?
4. Do we know if the psychiatrist sought Holmes’ permission for her to talk to his parents?
5. Did the psychiatrist (incorrectly) believe that her obligations were moot because the student resigned from the university? Did she ever discuss termination or transfer of care with Holmes?
6. Many universities now have threat assessment teams. Is it possible that their use creates a “diffusion of responsibility” problem whereby the original referrer feels less pressure to take action to protect the patient and community?
7. Do we know if Holmes saw the psychiatrist in the week preceding the murders?
8. Did the psychiatrist consult with CU’s lawyer or her own attorney as to her ethical and legal obligations in this case?
Psychiatry is not a hard science, and practitioners will make mistakes. Was a mistake or mistakes made in this case? It is easy to conclude that they were, but without more facts and analysis, we really don’t know whether the relevant laws hampered the psychiatrist or whether the psychiatrist felt – correctly or incorrectly – constrained by the law(s) and wanted to take further steps consistent with her ethical obligations to protect the safety of the patient and the community.
I doubt we’ll get answers to most of these questions in the near future, but they are important questions to ask if we want to learn any lessons from this terrible situation.
Update 1: ABC reports that the psychiatrist did make contact with a university police officer about her concerns in the weeks before the massacre. This confirms my point that there are a lot of facts we do not yet know about this case and we should withhold judgement until the facts are revealed.