Commentary: no place to hide.

Law schools usually teach that the standards and burden of proof for civil and criminal cases are different because civil cases are about mere money and criminal cases are about liberty. Mental health law, however, rather unhappily, sits in the middle—it is quasicriminal. I could not think of a worse position to be in than that of a mental heath detainee when civil standards (and due process protection) are applied for a criminal (liberty compromising) disposition. But if you think that is bad, think of the rather unique extension of civil principles to a criminal process exemplified by what has been called the “criminalization of Tarasoff.” After 25 years, the Tarasoff 2 debate rages on in the pages of this journal and elsewhere, while yet another circuit court unsatisfactorily attempts to reach a middle ground. Legislation and case law has fairly well established by now that there is a duty to warn, however broadly one interprets that duty. To warn is a breach of confidentiality, nevertheless, quite distinct from breaching privilege, which is where the recent case of Chase is grounded. Because Chase was decided in a federal court, inevitably the caveat of public protection— being a possible future exception to privilege inserted as a footnote (“the privilege must give way,” also known as the Jaffe footnote)—raised its unattractive head. In the end, it is still not clear where psychiatrists stand in terms of disclosure, legally and ethically. This discourse is replete with interesting poles: privilege versus confidentiality, legality versus ethics, and more recently, as the Ninth Circuit (en banc) tried to distinguish, wrong versus harm. I find it interesting that this mirrors the circuit split that has become wider since the Supreme Court was invited to resolve this issue in Jaffe. Since psychiatrists by a rather unclear mandate have been enlisted to prevent harm, it is surprising that a more robust elaboration of the various harms were not to be found in the decision by the Ninth Circuit. In balancing benefit against harm, courts traditionally care more about the consequences of their decisions, such as the potential for harm, than upholding overriding principles, such as the sanctity of patient confidentiality. The thinking by courts seems to be that principles are good as long as they do not come in conflict with public safety (a different kind of harm) or public policy. The dangerous patient exception to normal therapist-patient testimonial privilege is one such example. If the rationale of warning (and by extension protecting) the potential victim is to prevent future acts of violence, it can be argued that some good is achieved (for the patient) by ensuring that the patient does not pay for his crimes and that he has adequate treatment. Why else would a patient reveal violent fantasies if not to seek help and ask the therapist to stop him from acting on those fantasies? Doesn’t he know that a secret out for one purpose is a secret out for all purposes? But does a patient really know? A similar argument about what patients really know or understand at an emotional level, even after they have been explicitly (in the form of limits to confidentiality warning) told about the different nature of the forensic evaluation, has not yet been satisfactorily resolved. Are doctors (healers) ever anything else, even if they say they are? It is thus entirely possible that the good side of the patient is asking the therapist to take all necessary steps to stop him from acting in a violent way. Quite understandably, outside of psychoanalytic circles this argument has not found much favor. Mostly, we are allowed to make bad decisions, even dangerous ones, if we are Dr. Sarkar is Consultant in Forensic Psychiatry, Broadmoor Hospital, Berkshire, UK. Address correspondence to: Sameer P. Sarkar, MD, Broadmoor Hospital, Crowthorne, Berkshire RG45 7EG, UK. Email: [email protected]