By Invitation

The fine line between duty of care and duty to report

In late July, a ceremony took place in the French Alps for the families of the passengers and crew in an air crash. In March, Andreas Lubitz, the co-pilot of a Germanwings Airbus A-320, killed himself and everyone on board by crashing the plane into the craggy mountainside. The remembrance came amid the families' great unhappiness over the "deeply insulting" compensation offered to them by the airline.

Subsequent investigations revealed that Lubitz had a history of depression and had searched the Internet for suicide methods before that final flight. It was reported that he had consulted more than 40 doctors, including psychiatrists.

Some of the doctors felt he was psychologically unstable and unfit to fly, but did not divulge this because of medical privacy laws in Germany, where doctors risk fines and even imprisonment if they disclose information about patients to anyone, unless there is evidence of an intent to commit a serious crime or harm themselves.



At the heart of medical privacy laws is the principle of confidentiality, which is vital to the preservation of trust between doctors and patients.

Patients share personal information with their doctors with the understanding that it will be safeguarded and used in their best interest. If that confidentiality is breached, trust in the physician-patient relationship would be broken.

Patients would be less likely to share sensitive information, which could affect their care, and it would make them less willing to seek help.

It would also erode public trust in the medical profession and diminish its healing role.

It is thus important that there are laws to protect this confidentiality.

However, this is not absolutely sacrosanct. There are occasions when there is a need to break this otherwise-ironclad confidentiality.

A landmark case occurred in 1969 when Prosenjit Poddar, a graduate student at the University of California in Berkeley, disclosed to his psychotherapist in the student health facility that he wanted to kill a young woman named Tatiana Tarasoff whom he had met at a folk dancing class. He was smitten by her, but she rebuffed him.

The therapist believed that Poddar would carry out his threat and duly reported him to the university campus police.

However, the police thought otherwise after interviewing Poddar, who then refused further treatment. Two months later, he went to Ms Tarasoff's house armed with a kitchen knife and stabbed her to death. Her parents sued the University of California, which ran the healthcare facility and employed the campus police.

The case went before the Supreme Court of California, which ruled that "when a doctor... determines or should determine, that a warning is essential to avert danger arising from the medical or psychological condition of his patient, he incurs a legal obligation to give that warning... Thus, it may call for him to warn the intended victim, to notify the police, or to take whatever steps are reasonably necessary under the circumstances".

The corollary of this case, which has established its place in the annals of psychiatry, is that doctors and psychotherapists have a duty to protect identifiable individuals from any danger if they have information that could prevent harm. In this sort of situation, the duty to protect the community trumps the duty to protect patient confidentiality.


But the assessment of dangerousness in a person is invariably fraught with difficulty, the prediction of which is a matter of probability and never a certainty.

Violence often has a contextual element and takes place within a set of shifting circumstances which could change with time.

The assessment requires the gathering and sieving of considerable information from as many sources as possible.

Then there must be a comprehensive appraisal of the person's past and present, taking into consideration the frequency, intensity and severity of past dangerous behaviour and identification of an array of possible triggers such as substance abuse, losses, interpersonal conflicts and financial problems.

The assessment of the likelihood of someone committing both murder and suicide is even more complex and treacherous.

This is confounded by the dearth of research on these rare events and the impossibility of extracting the most needed and relevant information from the perpetrator.

The last scholarly review of the rate of murder-suicide was published in 1992 in the Journal Of The American Medical Association, which reported the annual incidence of murder-suicide was 0.2 to 0.3 per 100,000 people in the United States. Getting the assessment wrong either way has serious consequences for both the patient and the doctor.

In the book Seminars In Practical Forensic Psychiatry, British psychiatrist Derek Chiswick cautioned doctors not to underestimate the implications of an assessment of imminent dangerousness as this often leads to incarceration of the patient.

"If he errs by detaining 20 patients for 10 years longer than was necessary, the fact is hardly likely to come to light or cause him professional harm, even though he is responsible for 200 years of unnecessary detention," wrote Dr Chiswick, who also noted the dilemma intrinsic in such assessment. "Conversely, if he releases one patient who subsequently commits a violent crime... he will experience intense public opprobrium and professional scrutiny. He is likely to face an inquiry and even disciplinary proceedings or civil action for professional negligence."

Two years ago, a psychiatrist in France was found guilty of involuntary homicide after her patient killed someone. The subsequent sentence handed out was for the "grave error" of not recognising the public danger posed by her patient.


There is another troubling issue which has arisen from Lubitz's deliberate act of mass destruction: the implied and operative presumption of the general public that dangerousness is intimately, and often, if not invariably, associated with mental illness.

Often when mental illness is cited in the context of a heinous act, it is as if that alone could explain the otherwise-inexplicability of the act.

The former head of the department of aviation psychology in Lufthansa (which owns Germanwings) was reported to have said of Lubitz: "If I had known about his medical problems with depression before starting his flying career and during his primary training, I probably would not have accepted him."

In grim retrospection, most people would agree with this obvious regret. But the presence of depression, which is a treatable condition, should never be  facilely equated with impairment, incompetence or danger. In an interview with the BBC, Sir Simon Wessely, president of the Royal College of Psychiatrists, said there are millions in Britain with depression, and this includes pilots who "resume flying, perfectly safely, for maybe tens of years afterwards".

The overwhelming majority of violent acts are committed by people without mental illness, and most mentally ill people are neither violent, disruptive nor bizarre.

It has been a Sisyphean task to get people to know or remember this statistical fact. Most continue to harbour a broad and deep-seated fear (and prejudice) of people with mental illness.

German investigators have found torn-up sick notes from doctors indicating that Lubitz did not stay away from work when certified sick, including on the day of that final flight - evidence that, in the words of the investigators, supports "the current preliminary assessment that the deceased hid his illness from his employer and his colleagues". It would seem that he had feared being discriminated against and losing his job.

We may never know if Lubitz's mind was so horribly distorted by depression or any other illness that he did what he did. If it were the case, one wonders: If there had been no shame in admitting to a mental health problem and seeking help, if there were no fear of the stigmatisation of mental illness, might he not have been driven to crashing the plane, and might those lives not have been extinguished?

Depending on what else would emerge from the ongoing investigation and how we would subsequently look at it, the victim count in this crash might not be just 149. It might be 150, if you include 27-year-old Andreas Lubitz.

• The writer is vice-chairman of the medical board (research) at the Institute of Mental Health.

A version of this article appeared in the print edition of The Straits Times on September 01, 2015, with the headline 'The fine line between duty of care and duty to report'. Print Edition | Subscribe