Friday, July 27, 2012

Confidentiality and the Unthinkable: Murder

Perhaps you've been in therapy at some point in your life. Your therapist--whether they be a psychologist, social worker, psychiatrist, mental health counselor, or marriage and family counselor--should have notified you about the nature and limits of your confidentiality.

I've been thinking about this a lot recently. The news report instantly got my attention. Anderson Cooper reported that a notebook that was mailed to a psychiatrist at the University of Colorado was handed over to the police. That notebook, made by the alleged killer James Holmes, detailed his plans for the murders in Aurora Colorado. More news has since come forward. The psychiatrist, Dr. Lynne Fenton, treated James Holmes for schizophrenia. He was at one point, her patient.

We don't know the nature of that treatment. We don't know how the journal was released to the authorities. Unnamed sources. That's what the news reports say. Unnamed sources leaked information that James Holmes was treated for schizophrenia and sent his psychiatrist a notebook that contained stick figure drawings of his plans for the massacre that left twelve dead and 58 wounded.

What is the nature and limits of confidentiality in psychotherapy? Here is what I tell each and every patient that walks into my office. I'm not a lawyer. Keep that in mind. This is my best understanding of the laws that govern my practice as a licensed psychologist in the Commonwealth of Massachusetts. The laws don't differ much from state to state.
What you say here, stays here. It is important to me that you know that this. As a licensed psychologist the things we talk about remain confidential except under very specific circumstances. I want to spend some time talking about this and I'd like you to spend some time asking me questions. Confidentiality means that I cannot and will not talk to other people about you and our work except under very specific circumstances that I will explain. This means your husband, wife, partner, friend, parents, or police can't call me up and ask about you. If they do, I say I cannot confirm or deny knowing you. As soon as I get a call like this, I will contact you and tell you. If you are under 18, your parents can ask about you, and have a right to know what we are talking about. If you are over 16 and under 18, you can tell me not to talk to your parents and I would have to respect your wishes. However, your parents still have the right to inspect your medical records.
That is the basics of confidentiality. I don't ever reveal information, except in certain special circumstances, about my patients. It is the beginning of a special relationship where a patient can talk about whatever they wish. Their fantasies, their fears, their hopes, their traumas, their crimes, and their crimes against others. I listen. I don't talk to other people about it. Without this basic trust no patient would ever feel safe exposing the contents of their minds, hearts, and souls.

Psychologists have a duty to protect people from abuse. This is what I say:
Here are the limits of confidentiality. It's important that you know them. I do not want you to find yourself in a situation where you talk about something and then have unexpected consequences because I have to take action. We can talk about this as much and as often as you'd like. You can ask me hypothetical questions should you want to know what I'd do in particular kinds of circumstances. If you talk about and identify a child under the age of 18 that is being abused, anyone over the age of 60 that is being abused, and anyone, of any age, that has a disability that  is being abused, I will have to break your confidentiality. It is important that you understand that if you identify the person being abused, or I can reasonably ascertain their identify from what I know about you, I will have to break your confidentiality and protect that person.
Psychologists have a duty to protect patients from committing suicide. This is part of what I say:

The second circumstance when I would have to break your confidentiality is if I have reason to believe you will kill yourself. This doesn't mean that I will immediately hospitalize you if you talk about having a dark night of the soul, or wonder what it would be like to not be alive. Many people talk about suicide and contemplate their own deaths. Many people are also chronically suicidal and do not require hospitalization. We can talk a lot about this, what this means and what it doesn't, and we'll work together to make sure you can talk openly about any feelings you have about suicide while also making sure you are safe.

Psychologists have a duty to warn and protect intended victims of homicide. This is what I say:
The last circumstance when I would have to break your confidentiality is if you are planning to kill someone. Often times people say "Oh my boss, I could just kill him." I understand that is a figure of speech. You wouldn't be hospitalized for that. However, should you have planned and and have intention to commit murder and you tell me about it, and you identify your intended victim or victims, I will have to take every action at my disposal to protect you from committing this crime and protect your intended victim. This likely means I will attempt to have you secured in a psychiatric hospital. If I cannot do this, I am required to warn your intended victims and am required to warn the police.
Think of what would have happened should that journal Holmes made was been found before the crime was committed. Lives could be saved. Traumas could be prevented. Dark Night Rising would be about Batman, not about murder. Our  movie theaters could feel safe.

None of this, of course, will ever happen. Nothing will undo the murder of twelve people and injuries of 58 others. Nothing can undo what has already happened.

Had Dr. Fenton had knowledge of the intended crime before it happened, she would have had an affirmative duty to protect and warn. We do not know what Dr. Fenton knew, and when she knew it. We only know that Holmes was in treatment at some point in time, and that a journal detailed the crimes arrived at the University of Colorado at some point in time.

What does a psychologist do when a patient has already murdered someone? What if the unthinkable happens and a patient of mine walks into my office, sits down on the couch, and confesses to a murder?

I cover this in my first session with patients.
If you murder someone, and then tell me about it, I believe that I cannot break your confidentiality. You need to understand that. I would have a lot of questions for you. We would talk about what you did, and how you want to move forward in making the right choices. This would be very difficult for me, however, your confidentiality would remain and it is my understanding that I would not be able to turn you in to the authorities. Any other crime you might be involved in, as long as it doesn't involve planning murder or the abuse of a child, person over 60, or a person with a disability, is not something that I can tell other people about. 
How could someone get my records? That's covered in the first appointment, too.
Your records are confidential, as is the contents of anything we talk about inside this room. If you give me permission to release information about you to someone, and we agree it is in your best interest, I will do that. I will release information without your permission if you are a risk to self, risk to others, disclose abuse that I am mandated to report, or if your decision making is impaired based on the symptoms of a mental illness. Short of that, I would need a court order from a judge to release information. Am not required to hand over medical records based on a warrant or a subpoena. 
I also share with patients how I break confidentiality in these circumstances. There is a specific and progressive order of steps that I take that escalate until I either am assured the individual is safe or I have progressively exhausted all means I have available to protect an individual.

So why am I writing about this? I believe I have no business, as a  member of the public, knowing that James Holmes was in treatment for schizophrenia. I believe I have no business knowing that he wrote a journal in which he detailed his plans for the murders.

As difficult and as unpopular as this might be, if I was his psychologist, I believe I would have the responsibility to hold onto this confidentiality and not release the journal or any information about his treatment until such time as I was served with a court order. 

Somewhere, somehow, Holmes lost his confidentiality. I think it was wrong that this happened. He had already committed the alleged crimes. There was no duty to warn or protect, therefore no ethical or legal reason to disclose the journal or information about his treatment.

There was every reason to protect his confidentiality. Not because of Holmes, mind you. We needed to do a better job of protecting Holmes' confidentiality because of everyone else that ever enters into a therapeutic relationship.

My work starts with a promise. I promise to keep your confidentiality and hold your secrets. I promise to do my best to keep you safe. I promise to keep those around you safe. This breach of confidentiality (whether a failure of the doctor, the university, a mail clerk, a student assistant at the health center...) makes every patient, everywhere, a little more afraid to reveal the contents of their minds, hearts, and souls to the professionals they entrust with their secrets. 

That promise, the most important promise of the therapeutic enterprise, was broken.


As I find specific information for licensed individuals in various jurisdictions I'll add them here.


(G) Divisions (A) and (D) of this section do not require disclosure of information, when any of the following applies:

(1) The information is privileged by reason of the relationship between attorney and client; doctor and patient; licensed psychologist or licensed school psychologist and client; member of the clergy, rabbi, minister, or priest and any person communicating information confidentially to the member of the clergy, rabbi, minister, or priest for a religious counseling purpose of a professional character; husband and wife; or a communications assistant and those who are a party to a telecommunications relay service call.

(5) Disclosure would amount to revealing information acquired by the actor in the course of the actor's duties in connection with a bona fide program of treatment or services for drug dependent persons or persons in danger of drug dependence, which program is maintained or conducted by a hospital, clinic, person, agency, or organization certified pursuant to section 3793.06 of the Revised Code.

(6) Disclosure would amount to revealing information acquired by the actor in the course of the actor's duties in connection with a bona fide program for providing counseling services to victims of crimes that are violations of section 2907.02 or 2907.05 of the Revised Code or to victims of felonious sexual penetration in violation of former section 2907.12 of the Revised Code. As used in this division, "counseling services" include services provided in an informal setting by a person who, by education or experience, is competent to provide those services.


  1. Thank you for writing this. I agree with your perspective and that we are in the minority. As an MSW student and adult school shooting survivor I have spent years contemplating the what if's, current are's and could it be different. If we spent less time blaming and guessing and more time educating to reduce stigma we might be in a better place. My heart ached for all the people who may not seek help because they are afraid of being categorized eroneously. Having a mental disorder does not equal violent. Confidentiality and ethics are the key to building a therapeutic relationship without them how can we be honest and do work? Unfortunately in our society we have a false belief that we can control things. Trauma is a normal,expected reality in other cultures. I enjoy your posts.

    1. Thanks for your comments, Kim. It's sad that this is a minority perspective, as it appears to be correct both in terms of ethics and the law.Your comment, that we have a false belief that we can control things, is so important. I learned this lesson in the aftermath of a patient suicide. Having had extensive training in the treatment and prevention of suicide, I had never really imagined it could happen to me. In the end, an attorney and psychologist was the person who reminded me that we delude ourselves into thinking we can be in control.

  2. I agree completely and think this blog is wonderful. I find it amazing that you speak up for every person in therapy or those of us considering treatment. Not many people have your integrity and I wanted you to know that who you are and what you do is appreciated. Each time I read a post I'm left wishing I could have you as my therapist. Since that isn't possible I just hope my therapist shares many of your qualities.

    1. Thank you for your very kind comment. It brightened my day. I hope that in whatever small way, I can show people the way to stand up for all of us. We are, as a human culture, so much stronger when we can stand as one.

      E pluribus unum

  3. Jason, I was required to have a psych. eval. prior to a surg. procedure. Believing what would be reported to my dr. was simply that I was a good candidate for surgery, I told some very intimate details of my life. I requested a copy of my case report. To my surprise, it contained these intimate details which then were sent to my dr., my atty., the defendant's attys,. I had called her when I received the report to ask specifically what was released. She said only the recommendation for surgery. I recently learned that was not true. I know this would keep me from ever seeking therapy again.

    1. I am so sorry to hear that when you were feeling vulnerable prior to a surgery you didn't get an adequate explanation of what would and would not be in the report.

  4. I was wondering whether if a patient disclosed to their therapist that they had been sexually abused in the past (historic) and the patient was under 18 would the therapist have to breach their confidentiality?

    1. Thanks from stopping by and asking your question.

      The answer is a complicated one in that unless you are a current patient of mine, and we are discussing this in the office with knowledge of your own particular context, I cannot give you a clear answer.

      Each state has different laws when it comes to reporting child abuse. In general, if a licensed therapist as reason to suspect someone who is currently under the age of 18 is being physically or sexually abused, they have a duty to report and protect that individual.

      You're question, if I understand it, is more difficult. There are endless nuances that come into play if someone is, say, 17 years old and disclosing abuse at a school they no longer go to by a person they no longer have contact with.

      I invite my patients to ask me hypothetical questions about ethical situations like this (without disclosing any of their actual information) so we can talk about what might happen should they discuss something similar. If you are in therapy, you might like to ask your therapist if they are interested in talking about a hypothetical situation with you.

      What's most important is that you find someone that you can feel comfortable and safe talking with. There are many crisis hotlines that you can call and speak to someone anonymously -- if you can't talk to your therapist, that's a good alternative.

    2. Thank you for taking the time to answer my question.
      Yes I think i will ask my therapist a hypothetical question- thats a really good idea, thank you.

    3. You're welcome. I am glad I can be helpful.

      Be sure to ask your question in a way where you protect your own confidentiality so you can know what will happen before you move forward.

  5. Shujail, a 13 years old boy, seeks an appointment at psychiatric department of a hospital.
    Shujail is seen by Dr. Asif (psychologist) and tells him of many personal and family problems, including severe physical abuse at home. Shujail asks Dr. Asif not to discuss the case with anyone, specially my folks.” Dr. Asif discusses his options with Shujail, explaining that he cannot offer treatment to anyone under 18 years old without parental consent. Dr. Asif also discusses his duty to report child suspected child abuse to the state’s department of child welfare and as a result Shujail feels betrayed.

    what is ehical delima in this case

    1. The doctor established a relationship with the child prior to getting consent.

      There are a number of other interesting and complex issues here as well -- perhaps fodder for a future blog post. What makes you ask, Anonymous?

  6. Hi, thank you for this post. I am a student counselor. If a client tells me that they sexually abused a child in the past, but not currently and does not want to in the future does that have to be reported? Does it change if the child is under or over 18 at the time the counselor is told? I am aware this may change from state to state, wondering what is usual. Thank you!

    1. Hi Anonymous -- great question with lots of complexities.

      If a patient discloses that they sexually abused someone and that someone is already over the age of 18, there is nothing that is reportable. You, in fact, cannot do anything to break your patient's confidentiality in this circumstance.

      If that person who is now over 18 has a physical or developmental disability, and is still in the home, it is likely a reportable situation: many states have very specific laws around duty to report for elders as well as for people with developmental of physical disabilities. It's useful to be well educated about this laws for the particular jurisdiction in which you will work.

      You asked a different what if -- what if your patient discloses they sexually abused a child and that child is still under the age of 18. This answer is much more complex.

      Your patient would need to disclose the name of the child that was abused. If they do, and if your patient is still in contact with the person they abused, that person is still at risk and it would be a reportable situation.

      It is less clear to me what the response would be if the patient disclosed a single episode of abuse to a known person that the individual has no contact with.

      See part two for more...

    2. Some thoughts on my own thinking process:

      It is not our place as licensed therapists to decide whether or not someone is safe in their home, or whether or not someone is being truthful if they say they are no longer sexually abusing a child. It is our responsibility to report that information to the proper department that investigates such allegations. If we have reasonable suspicious of abuse, we report. Someone else does the investigation and deciding.

      This places people who seek treatment who are abusing children in a difficult situation: to seek help puts one at legal risk since licensed therapists are required to report if they suspect abuse and they are able to identify the person who has potentially been abused.

      I am not trained in working with people who sexually and physically abuse children. I would assume that someone who does would have much more specific information about what to do in this circumstance. Should something like this occur in my office I would try to get my patient to stop talking so I can gather more information about what my next steps would be in the event they disclosed something reportable.

      I would seek guidance from more knowledgable peers as well as my attorney. I would also likely place a call to the local child welfare office and ask a hypothetical question: "If I had a client to disclosed something like (x, y, z) would it be someone that you'd take a report?" Children services are someone notorious for being difficult around hypotheticals, but often times they will (when pressured) at least tell me whether or not they would investigate an allegation made under various circumstances.

      Some reading this might take issue with my intention of stopping a patient from disclosing information that may require me to report the situation to police and/or child welfare workers. In shutting down a patient from disclosing, I may fail to protect a child that has yet to be named.

      I feel strongly about this: I do not entrap patients.

      In the first appointment, I explain to every patient the limits of confidentiality -- before we talk about anything of importance. I will at times remind patients about the limits of confidentiality when it seems important (any discussion about suicide, homicide, crimes, or abuse). Discussing ethics and boundaries is an ongoing dialogue with my patients and one of the most important things I do.

      I can, will, and do fully exercise my duty to warn and protect as required by my ethical code, laws of the Commonwealth of Massachusetts, and my own moral sense of what is right. However, I also have a duty to my patient to make sure they are engaged in a therapeutic process that includes both informed choice (knowing what they can choose from, and what those choices mean) as well as having the dignity of risk (the right to make their own choices).

      Perhaps some other people will add their thoughts?

    3. Thanks so much for your thoughtful response!

    4. You're welcome. Glad it was helpful.

  7. Jason, I appreciate your article and your input on this very relevant and controversial topic. As a medical student, we briefly spoke of this in one of our lectures and I wanted to confirm with you that if one of your patients comes and tells you that they murdered someone the day before, that you would not report that person. I understand a lot of it depends on whether you think the person can harm other people but can you explain to me why (if the law doesn't) it is not a requirement to report someone who murdered someone. I understand why child abuse is reported but if that is required to be reported, why isn't murder? Abuse can lead to a very hard life with many psychological issues but murder ends life. Why wouldn't there be laws present, protecting the doctors, and forcing them to report murder? Thanks for the input!

    1. As a psychologist, my best understanding of confidentiality laws based on my reading of ethics, the law, and consultation with attorneys, is that I would be required to maintain confidentiality if a patient has already murdered someone and is not currently homicidal.

      How would a law requiring psychologists report patients who have committed murder help protect they psychologist? You posed that question and I'm curious to hear more about it.

      I was not part of developing the laws and ethical codes that govern my clinical practice. I don't know the thinking of those who were in the development of this. I do have thoughts about it.

      Patients come to therapy to understand themselves and for help changing. Our job is to do that--to help. Reporting someone for a crime that has already happened, that isn't putting a person who is currently alive in jeopardy of death or abuse, would prevent a patient from being able to talk freely about what they are doing -- they'd be forced to incriminate themselves in the process of seeking help. They would not come to therapy for help.

      I'm a psychologist--not an officer of the court. It's not my job to turn people in for their behaviors and to prosecute them for their crimes. It's my job to help them understand themselves, to learn tools to make effective choices, and to support them making those effective choices. Sometimes it is difficult to see people make ineffective choices--sometimes it's painful to hear about ineffective choices people have made in the past. I have to tolerate those feelings, even if I don't agree with the decisions of my patients, because my job is to be helpful -- not to prosecute or dictate the choices my patients make with their lives.

      There are to basic principles that I always follow. I want my patients to make informed choices about the decisions they make. I want to make sure they know the benefits and dangers of any individual choice. I also believe that it is my job (duty, and moral requirement) to allow for my patients to have the dignity of risk--knowing the benefits and dangers--having the freedom (like everyone else) to succeed or fail.

      My patients learn the limits of our relationship -- that I cannot maintain their confidentiality if I suspect child abuse, elder abuse, or abuse of a person with a disability (if I know who the person is). I cannot maintain their confidentiality if they are planning on killing themselves or killing someone else. With that, I promise to keep their other secrets. Their fantasies, crimes, pain, dreams, failures, and moral dilemmas. I do not speak of them. Ever. They are free to explore and consider everything that comes up within the limits of our relationship -- free from worry. That is my job. That is our job as psychologists.

      If I can't do that, I cannot be a psychologist.

  8. Hello, I Have a Friend Whos child was touched inappropriate way by a relative not sexual contact but touched body parts.She confronted relative and has stayed away but did not report to police in fear of getting her child in system. She has noticed changes in her chid and would like to take her to therapist.Now she fears being reported and gets in trouble has let 6mos go by. she lives in NY would therapist report her to police or anyone else?


    1. Hi Anonymous. Thanks for stopping by and leaving a comment. I can't answer your question as I'm neither a licensed therapist in New York nor am I the therapist of this particular client. I'd suggest this person consult with an attorney in New York and/or consult with a licensed therapist and ask this question as a hypothetical. I hope your friend gets her child to some help: it's important.

  9. When therapists give evidence to the police to prevent a murder, how is the evidence used at trial? Does that part of the trial become sealed or is it public knowledge? Thanks

  10. Hi Anonymous, thanks for your question. The laws in each state vary, so the best person who could answer this would be an attorney in whatever state you live in. Sorry that I can be more helpful.

  11. Here is my story both as a comment and a question. I went to therapy during and after a divorce and talked a lot about the ex-husband. He then sued me for custody and subpoenaed all of my therapy records. There was no allegation of abuse or neglect, it was a relocation trial (he was trying to force me to relocate with the child). The trial was called off when his one and only witness declined to recommend the move, the ex-husband had to pay some portion of my legal fees. However, he now has my therapy records on his home computer - the raw notes - and routinely quotes them to me. Your article ultimately mentions that it ultimately would take a court order to release your records, but I am a person who went to therapy thinking it was private and confidential and then my records ended up saved on the desktop of the person who was causing me the distress.

    1. Hi Anonymous, sorry that you had to experience all of that. Your question is one that is best answered by a lawyer. It is my understanding that medical records cannot be subpoenaed--the only legal mechanism to force their release is a court order. There are situations, from what I am told, when if a person introduces their therapy into court, it becomes something that is open to cross-examination. These again are all questions that are best suited to be reviewed by a lawyer with you so you understand how your protected information was transferred from the court to your former husband's computer.

  12. Hi Jason. If a client tells you that they want to get psychological help because they don't want to get to the point of hurting someone because they have knowledge on how to make harmful weapons from his surroundings would they need to be reported? The client says he doesn't want to revert back to this behavior long time.

    1. Hi Anonymous, this would be the kind of question that requires too much knowledge about context to answer. Risk assessments are complex endeavors that consider a lot of different factors. The duty to warn laws generally rest on imminent harm, and having a clear person who is at danger. Sorry I can't be more specific.

  13. I am unaware how educated you are with other states sexual abuse laws, but I am going to pitch a question anyways because this is the closest I've come to having an answer in the 3 hours I have been searching the internet. Hypothetically if a person was sexually abused as a minor, but is not over the age of 18 (21 to be exact) and wishes to disclose that information to a therapist is the therapist required to report that information? This persons knows the statute of limitations for sexual abuse cases in NYS is 23, but that doesn't tell this person if they have to wait 2 more years to talk about it.

    1. Hi Megan, and thanks for your comment. Every state is slightly different, so you'd need to talk with someone in New York that has a clear understanding of the mandated reporting laws. My understanding of the mandated reporting law in Massachusetts is that once someone is over the age of 18, there is no longer a duty to report. Children Services would not take the report for someone who is no longer a minor, and I believe that trying to make such a report would violate the confidentiality of the client to disclosed childhood abuse. There are some important things to keep in mind: I am also mandated to report elder abuse and abuse of people who are disabled.

      I would be very surprised to learn that NYS requires reporting when someone over 18 (but not an elder, and not disabled) reported physical abuse that happened when they were a minor. That would be nonsense, would violate our notions of confidentiality, and would be counterproductive in all sorts of ways. I also doubt that children services in NYS would have the authority to investigate alleged abuse that happened to a person that is not legally considered and adult.

      With all that said, I think it's always good to ask hypothetical questions to a therapist, to ask explicitly what the limits of confidentiality are, and to expect a therapist to be knowledgable about those limits or willing to immediately seek clarification.

      Hope this helps.

    2. Thanks that was very helpful!

    3. Great Megan, glad I could be helpful.

  14. Hi Jason,
    I am a young adult teacher. During some of my free periods, I've visited the school counselor and disclosed certain things about past parental abuse. We've also developed a friendship over the year. But over the past three weeks, I have become a bit suspicious about certain comments made on both ends (hers and my parents) that suggest they know about circumstances I have only mentioned to the other party. Naturally, I thought confidentiality would never be breached since I never said or did anything alarming or harmful and I'm way past 18. I'm not sure how to handle the situation… do I ask my parents if they've ever been contacted by this person?

    1. This sounds like a very complicated situation, and one that I cannot fully comment on because I'm not aware of all the specifics. I'd encourage you to talk with a licensed professional in your state to specifically sort through the things that happened so you can explore what options you have to move forward.