What "Joker's" Psychiatrist Knew, and When She Knew It

Aug. 3, 2012 - PRLog -- In a situation shockingly similar to that at Penn State, and perhaps also at Pima Community College, a responsible official apparently breached a legal duty to protect others, and failed to take action necessary to prevent a subsequent tragedy - leading apparently to what the Washington Post termed "a fortress of silence" even before a gag order was issued - argues public interest law professor John Banzhaf, one of the first to raise issues about civil liability of the University of Colorado for the theater shooting by its former graduate student.

It now appears that university psychiatrist Lynne Fenton had received "a serious threat of imminent physical violence against a specific person or persons" from her patient, James Holmes, weeks before the fatal shooting."

This conclusion can be drawn from the fact that she reportedly communicated her concerns to several other university officials weeks before the massacre, an apparent breach of psychiatrist-patient privilege which would have been illegal unless required by law.  However, the law does permit just such a breach, but only when "the patient has communicated to the mental health care provider a serious threat of imminent physical violence against a specific person or persons."

Since Fenton apparently was sufficiently alarmed by what Holmes told her to warn several members of the university's Behavioral Evaluation and Threat Assessment [BETA] team, it would appear that, in her judgement, the threat was one of imminent physical violence which was sufficiently serious to warrant this breach of confidence.

Unfortunately, it appears that the BETA team never met, apparently because Holmes was dropping out of school.  Indeed, sources said the reason that the BETA team never met, much less took any action, is because when Holmes withdrew, BETA allegedly "had no control over him."

But Gene Deisinger, a former clinical psychologist, and now deputy chief of police at Virginia Tech and head of the school's threat assessment team, said, "We don't close a case solely due to someone leaving the university."  "The decision to close a case is made based on assessment that the person no longer poses a threat of violence or significant disruption to the campus or to any other identifiable target."
About 80% of colleges have some type of threat assessment team, and several - involving Pima Community College - are involved in litigation which is still in the courts.

Banzhaf suggests that Holmes' decision to withdraw from the university does not terminate the legal duty upon the university, its BETA team, and especially its psychiatrist, to take appropriate action once they knew or should have known the Holmes presented a serious threat to others.

For this reason, and because it has "deep pockets," and does not want to suffer the embarrassment of further revelations, nor the repetition in court of those which have already emerged, the university will follow the lead of Penn State and try to settle any law suits against it which might be filed, argues Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/