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John Hockenberry: All right, here's a question, and I wonder if you've posed it to yourself over the past week. If someone is seeing a psychiatrist and then commits a senseless, seemingly insane, violent crime, does the state have the right to know what was said in the therapy sessions of the suspect in the days and weeks leading up to the shooting? The question is disturbing. It's abstract and not necessarily germane to the tragic events in Aurora, Colorado, this month, but it might be. Over the past few days, we have learned that James Holmes, the suspected shooter in the Aurora movie theater massacre, was seeing a psychiatrist named Dr. Lynne Fenton prior to the shooting and that Holmes sent a package to her that his defense team wants handed over. Fenton has been identified as medical director of the University of Colorado's Student Mental Health Services Department. Holmes was a student at the University of Colorado. Let's explore this with Arthur Caplan, who heads the Division of Medical ethics at the NYU Langone Medical Center, and Dr. Paul Applebaum, practicing psychiatrist and professor of psychiatry, medicine and law at Columbia University. Doctors, welcome.

Arthur Caplan: Hey, how are you?

John Hockenberry: Arthur, let's start with you. What is typically the doctrine of responsibility of medical professionals, say, a psychiatrist in a case where an individual might have suggested that he or she was a danger to their surrounding community? Notification?

Arthur Caplan: Well, it's a tough problem because the first requirement is certainty that you really believe that harm to someone is imminent, that it's going to happen soon. Not some vague threat, not some abstract expression of violence, but an imminent threat. You also are supposed to know against whom or at least where. You can't just warn people and say Joe is being threatening in his sessions here, and I want to warn you of that. It doesn't do anyone any good. There's nothing they can do about it. It has to be against a specific person or maybe to a specific collection of people at a place.

You have to weigh that against I'm going to try and do my best to work with this person to provide them therapy, and if they don't trust me, they're not going to talk about these fantasies. They're not going to talk about these violent intentions. You're doing a little balancing. The real standard is protect a person or persons that you believe are under imminent threat.

John Hockenberry: Dr. Paul Applebaum, how vigilant are you about these sorts of things when you're in therapy with people who are exhibiting a degree of instability?

Dr. Paul Applebaum: I think we're all extremely vigilant, inquiring about aggressive histories or thoughts of harming others. Is part of a routine workup, a routine mental status evaluation. Depending on the responses that we get, we will follow up to a greater or lesser extent in order to determine just how firm and how planful and how likely to be acted on those ideas are.

John Hockenberry: Now, Dr. Applebaum, I obviously don't want to violate any confidentiality here, but in your career, have you notified either a family member or an institutional authority, say the dean of a college or say, even a law enforcement authority about something that went on in one of your therapy sessions?

Dr. Paul Applebaum: It doesn't happen often, but I have in my career notified threatened victims of a patient.

John Hockenberry: All right, Arthur Caplan, let's talk a little bit about what the legal tests are here. It happens to be a federal crime for me to say with intent, "I want to assassinate the President of the United States," and use him by name. If somebody says that in a therapy session, they've actually committed a crime, is that an automatic trigger for the doctor to notify law enforcement authorities, or is it up to the judgment of the medical practitioner?

Arthur Caplan: It's really a judgment call because you're balancing the idea that people are going to say all kinds of things, fantasies, kind of wishes that they never really intend to carry out. Paul pointed out one of the things that you watch for is history. Is this coming up again and again, same person being threatened. Has this person got any history of violence? Do you hear plans being articulated about how this is going to be done? You don't want to run and try and warn people every time a threat or some kind of violent fantasy comes up.

As I said before, it may be a crime to threaten the president, but I imagine each one of us in our thoughts during the day, may have had thoughts about something the president did that we didn't like, that may have eventuated in a violent thought, but you're looking for patterns. You're looking for something that you really believe outweighs the ability that you have to conduct therapy with this person. You've got a real, as I keep saying, imminent threat. It's going to happen soon, and it's very specific.

John Hockenberry: Well, Arthur Caplan, thanks so much for sharing. We'll forward any calls from the Secret Service directly to your office there at Langone. Dr. Paul Applebaum, when you heard the news story that this Dr. Fenton had, in a professional capacity, been seeing James Holmes, what went through your mind in terms of what's going to happen now in a situation like this, based on your experience?

Arthur Caplan: Well, we've been through an unfortunate number of these episodes of mass murders in recent years. Typically we face public expectations that psychiatrists and other mental health professionals should in some way be able to anticipate and prevent these unfortunate but fortunately rare events. I think the general public has an unfortunately exaggerated expectation of our abilities to know when somebody is likely to be harmful to others and to prevent those acts. I wish that were true, but unfortunately it's not true.

It is extremely difficult to know when of the many people who come into our offices, many of whom are angry, many of whom are threatening, that one needle in the haystack patient who will actually act on those impulses. That's a very, very difficult distinction to make.

John Hockenberry: We're exploring what might have been known about James Holmes, the suspected shooter in the Aurora, Colorado theater massacre. James Holmes is now charged with more than a dozen counts of first degree murder and more than 100 counts of attempted murder. Turns out James Holmes was seeing a psychiatrist at the University of Colorado by the name of Dr. Lynne Fenton. We're exploring what is the exposure of psychiatrists in cases like this to protect the community and to even attempt to predict that something like the massacre in Aurora, Colorado could have happened.

We are speaking with Dr. Arthur Caplan, who heads the division of Medical ethics at the NYU Langone Medical Center here in New York, and Dr. Paul Applebaum, who's a practicing psychiatrist and a professor of psychiatry, medicine and law at Columbia University. Art, this has been tested legally, and ironically, one of the major tests back in the 70s did involve a university and a mental health services practitioner and an individual who went on to produce significant harm in the community. Explain the case.

Arthur Caplan: That's right. I've been setting a standard, and I've been articulating something known as the Tarasoff case from California back in 1976. Very simply, young man pursued amorously a girl. She rejected his advances. At some point during his therapy at the student mental health center at Berkeley, he began to make threats against her, say he was going to harm and hurt her. The therapist actually did warn the campus police, but nothing came of his actions. The therapist did not warn Ms. Tarasoff.

Later, he got scissors and attacked her. The family sued and went to court, and the California court said, ultimately, you have to protect patients. You have to protect people who are innocent victims. If you believe that there really is an imminent threat, you've got to tell not only the authorities, but the intended victim. That case went all the way to the, as I said, the California Supreme Court, and it's been a landmark case. Other states have watched it and invoke that so called Tarasoff standard.

John Hockenberry: Dr. Paul Applebaum, does the Tarasoff standard have any relevance in your practice? If there were a liability lawsuit filed against the University of Colorado and you were in the same situation as Dr. Fenton, and again, we don't want to preempt anything, this is speculative. Is there any precedent for your therapy sessions with a patient being subpoenable? Would you be forced to answer any questions by a judge about what went on in those confidential sessions, Dr. Applebaum.

Dr. Paul Applebaum: Every state and Colorado is not an exception here, has a statute that protects the confidentiality of communications between therapists and patients. Some states have even broader statutes that protect the confidentiality of discussions with any physician, not necessarily a psychiatrist. Those statues exist for a reason. The reason is because we fear that without that kind of protection, patients won't open up, tell us about their concerns, information that may be embarrassing to them, information that they may fear could get them into legal trouble.

There are exceptions to these rules. They go under the rubric-- The rule goes under the rubric of patient therapist privilege. Those exceptions tend to be variable from state to state, but ordinarily, communications made in the course of treatment for the purpose of treatment are protected and could not be discovered in cases like this.

John Hockenberry: Art Caplan, in court, what typically happens in that situation? Does the doctor or the lawyer in question say to the judge that's confidential, that question is off limits and you move on, or does the doctor have to evoke some kind of Fifth Amendment protection sort of thing and say I refuse to answer that.

Arthur Caplan: The doctor does invoke those protections. The legal team may say in the case of a murder, we're going to try and override those statutes and try and get a judge to let us see what's going on. It wouldn't probably work in a minor crime at all, but in a major crime, you might see attempts to override that privilege protection. Sometimes ironically, John, the defense wants those notes entered in. I'm thinking here the Colorado experience, again, you don't know what might have been said or whether anybody actually warned anyone, but there may be information there that shows that the person is mentally ill and very, very disturbed and paints a picture of that person that might be useful in an attempt to say show an insanity defense.

Information that might be privileged, it may be the defense that actually wants to go at it, may want it revealed. One other thing, John, just as an ethical tough thing, I don't know what Paul does, but sometimes I'm asked by therapist, do you tell your patient that you're going to report them if they say something that you believe really represents an imminent threat to a person? Does the start of the therapy have to go with a Miranda warning?

John Hockenberry: That's A good question, Dr. Applebaum. Have you ever done that? Said, if you continue with this, I'm going to have to notify somebody?

Dr. Paul Applebaum: Well, our experience by now, we've had decades to work through many of these issues. The Tarasoff case came out in 1976. The experience of the profession is that it's better, if at all possible, to talk with patients first before breaching their confidentiality. I think we recognize that in circumstances where doing that might endanger the therapist, that that's not necessarily required. I wouldn't for sure start a therapy with this kind of warning simply because to the average patient, it's not material to their decision, as to whether to enter into or to continue in therapy. It is so unlikely to occur that the risk is vanishingly small.

If I thought that I needed to breach confidentiality and I would not be endangered by talking with the patient about it, I would in fact talk with the patient about it.

John Hockenberry: Imagine warning labels at the beginning of therapy. That's sort of the idea here. We're talking with Dr. Paul Applebaum, a practicing psychiatrist and professor of psychiatry, medicine and law at Columbia University, and Art Caplan, who heads the Division of Medical Ethics at the NYU Langone Medical Center. What is the responsibility of medical practitioners in cases of mental health therapy for people who go on and commit violent crimes? What is the legal responsibility in cases where there is physical evidence, notes, or a letter or a communication with a therapist prior to an event like that?

We'd love to know what you think. Call us at 8778, mytake or post a comment at the takeaway.org. Drs. Art and Paul, thanks so much.

Dr. Paul Applebaum: Thank you.

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