With the news of the Germanwings co-pilot having been treated for mental health issues, and from what we’re learning as officials continue to investigate the horrific crash, many people are wondering about a patient’s privacy versus a mental health provider’s obligation to warn.

There are differences in the standards for making decisions about medical privacy versus public safety in different countries.  In the United States, the safety of others is an exception to confidentiality.  Almost all states have adopted a duty on the part of the mental health provider to warn and/or protect the identified third-party victim(s) from a patient who may become violent.  This duty was created after the 1976 landmark case of Tarasoff v. The Regents of the University of California.  States, however, differ as to:

whether the duty is mandatory or permissive, and
 whether there is immunity for warning

And back to the issue of protecting confidentiality, it may be possible to still maintain a patient’s privacy.  State laws differ, but it may be possible to protect the third party victim (or class of identifiable victims) by taking measures to protect them, such as hospitalizing the patient.  Once hospitalized, the patient’s threat of harm is not imminent, so there may not be a duty to warn the third party.

Balancing the patient’s privacy rights against the safety of a third party is a complex endeavor.  If possible, consultation with your risk managers may help those facing this tough decision.  If such consultation is not possible, this risk manager’s advice is to err on the side of the third party’s safety and take steps to protect that third party.  In that worst case scenario, you would be defending a breach of confidentiality allegation versus defending a wrongful death allegation.

Donna Vanderpool, MBA, JD – Vice President
As Vice President of Risk Management, Ms. Vanderpool is responsible for the development and implementation of PRMS’s risk management services for The Psychiatrists’ Program. Ms. Vanderpool has developed expertise in the areas of HIPAA and forensic practice, and has consulted, written and spoken nationally on these and other healthcare law and risk management topics. She most recently wrote a chapter concerning the risks of harm to forensic experts for Robert L. Sadoff, MD’s book Ethical Issues in Forensic Psychiatry: Minimizing Harm, (Feb. 2011/Wiley). Ms. Vanderpool received her undergraduate degree from James Madison University, and her MBA and JD from George Mason University. Prior to joining PRMS in 2000, Ms. Vanderpool practiced criminal defense law, taught business and legal courses as an adjunct faculty member at a community college and spent eight years managing a general surgical practice in Virginia.

This blog has also been cross-posted on LinkedIn.