Court says warning is OK, testifying is not

A split among federal appeals courts sends a mixed message on breach of confidentiality and leaves the government considering an appeal to the Supreme Court.

By Tanya Albert, amednews staff. Sept. 15, 2003.

Physicians should break physician-patient confidentiality and come forward to police if they believe a patient is in danger of harming someone, but they shouldn't testify at a patient's trial, a federal appeals court has ruled.

The 9th U.S. Circuit Court of Appeals in California, in its Aug. 22 ruling, goes to great lengths to differentiate between the two actions, ultimately saying that a physician testifying against a patient in a courtroom would have a far more damaging impact on the physician-patient relationship than a physician going to authorities to report information.

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"We know that the initial disclosure to the target or to the authorities can be damaging to the psychotherapist-patient relationship," the court said in its opinion in United States v. Chase. "But we think that a patient will retain significantly greater residual trust when the therapist can disclose only for protective, rather than punitive, purposes."

And the court worries that a patient who has seen a physician testify against him or her in court would be less likely to seek medical treatment later.

"A criminal conviction with the help of a psychotherapist's testimony is almost sure to spell the end of any patient's willingness to undergo further treatment for mental health problems," the court said.

Jeffrey L. Metzner, MD, chair of the American Psychiatric Assn.'s Council on Psychiatry and the Law, said the court's opinion draws a nice line between a duty to protect public safety and testifying in court when safety is not an issue anymore.

"Psychiatrists will find this very reasonable," said Dr. Metzner, a clinical professor of psychiatry at the University of Colorado Health Sciences Center. "It would be extremely difficult to provide therapy if we had to say, 'In addition to breaking confidentiality we will also be testifying against you.' "

"Warnings are really designed to try to prevent future harm, not to get into degree of harm or extent of guilt," added psychiatrist Howard Zonana, MD, medical director for the American Academy of Psychiatry and the Law and a professor of psychiatry at Yale University.

Paul Appelbaum, MD, the APA's immediate past president, said that if physicians knew they might have to testify in court, they may be more reluctant to report potential threats. Also, if patients saw news reports about a physician testifying in court against a patient, they may not seek help.

"The public at large would get the incorrect message that psychiatrists are out there breaking confidentiality," said Dr. Appelbaum, chair of the Psychiatry Dept. at the University of Massachusetts Medical School, Worcester.

Putting safety above confidentiality

In August 1999, Steven Gene Chase showed Oregon psychiatrist Kay Dieter, MD, a list of names, addresses and Social Security numbers and told her he had thought about injuring or killing the people and that he had threatened some of them in the previous five years, court documents show.

Dr. Dieter, who had been treating the man since 1997, worried that he would act on the threats. She told him that if he told her specifics about whom he planned to kill, she would have a duty to disclose the threats so the people could protect themselves.

The physician talked to her supervisors about her duty to warn potential victims, and the supervisor suggested that she not make a report at that time but try to get more information, according to court records.

In October 1999, Chase called Dr. Dieter and told her he and his wife had argued and that he was extremely upset, court records show. Dr. Dieter met with a supervisor and with legal counsel, and legal counsel advised that she contact the police. An investigation ensued that ultimately led to a standoff between authorities and Chase. The case was in federal court because an FBI agent was on the list. Dr. Dieter was called to testify about the list Chase showed her.

"I don't have a problem with a doctor reporting a potential threat in a unique situation," said Brett A. Purtzer, a Tacoma, Wash., attorney who represented Chase. "I had a major problem with a psychiatrist testifying against the patient."

Although the court upheld Chase's conviction without Dr. Dieter's testimony, that may not always be possible, said Jeffrey J. Kent, assistant U.S. attorney in Eugene, Ore.

For example, there could be instances where a defendant told only a psychiatrist that a list of names was compiled because the defendant intended to harm those people. In that case, there would be no one else to call who could testify to that fact, he said.

"We were disappointed in the decision," Kent said. "We believe when there are criminal implications that the psychiatrist should be able to testify."

Courts divided

Courts nationwide agree that physicians should come forward with information that could prevent harm to someone else, but federal appeals courts disagree on whether doctors should testify.

The 10th Circuit in Colorado has said a psychotherapist may testify about a threat made by a patient if "the threat was serious when it was uttered and ... its disclosure was the only means of averting harm ... when the disclosure was made." But the 6th Circuit in Cincinnati has said psychiatrists should not testify because "an additional warning that the patient's statements may be used against him in a subsequent criminal prosecution would certainly chill and very likely terminate open dialogue."

American Medical Association and APA policies do not directly address physicians testifying in court against a patient. But both offer guidance on patient confidentiality. The AMA says patients' privacy should be honored unless the patient waives that right in "a meaningful way or in rare instances when strong countervailing interest in public health or safety justify invasions of patient privacy or breaches of confidentiality." When a physician does break confidentiality, such breaches of confidentiality must be "as narrow in scope and content as possible," according to AMA policy. The APA's policy is similar.

With the split in the circuit courts on whether physician testimony is acceptable, the government is studying whether it will appeal the 9th Circuit ruling to the Supreme Court. Purtzer also will discuss with Chase whether to appeal the decision.

"The obligation to disclose potential harm remains, and the issue of testimony is one that is beyond a psychiatrist's control," Kent said. "It's ultimately going to be up to the courts."

ADDITIONAL INFORMATION:

Case at a glance

United States of America v. Steven Gene Chase

Venue: 9th U.S. Circuit Court of Appeals in California
At issue: Whether it was appropriate for a psychiatrist to testify against a patient at trial. The court said no but added that physicians have a duty to tell authorities about a patient's threats against others.
Potential impact: Several physicians say the ruling is reasonable. Prosecutors say it could be tough to prove some cases without testimony from a doctor.