Bandy X. Lee M.D., M.Div.

Psychiatry in Society

Mental Health Experts Advise Duties to Warn and to Protect

The Tarasoff doctrine offers guidance on how to apply the concepts.

Posted Jun 25, 2018

In the context of National Safety Month, I and other mental health experts have been declaring that forcibly separating thousands of children from their parents (Reuters, 2018), putting them in cages (BBC News, 2018), and propagating lies that this is being done for the country’s safety (Lind, 2018) is an instance of the dangers that we have been warning about, most notably in The Dangerous Case of Donald Trump, a book that I edited. Those who understand child development and toxic stress know that the forced separation is perhaps worse than the torture scandals of Abu Ghraib, affecting brains at critical stages of development (Santhanam, 2018) and spelling out a lifetime of psychological suffering, debilitating diseases, and early death (Felitti, Anda, Nordenberg, et al., 1998). Many children so abused become violent themselves (Shonkoff, Garner, Siegel, et al., 2012), and there is evidence of intergenerational transmission of such trauma (Plant, Barker, Waters, Pawlby, and Pariante, 2013).

This is only one of the forms of danger that mental health experts and I came together to warn against, as the natural outcome of the president’s mental pathology (Lee, 2018). While public revulsion seems to have curbed some of the most recent cruelty, he shows little interest in solving the problem and, above all, is bound to return to abuses on other battlefronts. In December 2017, I and renowned violence expert, James Gilligan, met with lawmakers under the direction of former assistant U.S. attorney, Sheila Nielsen (Karni, 2018). She has arranged for similar visits with lawmakers again, this time regarding these policies of violence against children.

However, more experts need to speak up. Authors of The Dangerous Case of Donald Trump will soon release a white paper that challenges “the Goldwater rule,” as the American Psychiatric Association (APA) has interpreted it two months into the current administration in order to gag psychiatrists from speaking about the dangers of a public figure (APA, 2017). This new interpretation has created the extraordinary situation in which comedians and other untrained pundits are able to use diagnoses in order to make jokes (Baranauckas, 2018) or to discredit opponents (Snopes, 2009), but no experts are allowed to clarify or correct errors. We rather argue that there is a positive duty to warn and to protect in situations of danger, given what we have observed as a result of its absence: a public that is confused, misled into trivializing mental health problems, and encouraged to minimize and deny—until it perhaps will be too late.

While the Goldwater rule is an analogy of patient confidentiality and consent, the analogy of a duty to warn and a duty to protect potential victims would be the Tarasoff doctrine. This was a ruling by the Supreme Court of California in 1974 that mental health professionals have a duty to warn potential victims if their patients made threats or otherwise behaved as a “serious danger of violence to another.” A rehearing of the case expanded it further, stating that therapists had a duty to protect, not just including notifying authorities but taking other reasonable steps to protect the threatened individual or the public (Tarasoff v. Regents of the University of California, 1976).

The case was based on the murder of Tatiana Tarasoff by Prosenjit Poddar, who had confided to a psychologist his intent to kill the former. The psychologist had the police detain Poddar but did not follow up after the police released him, after which he went on to murder Tarasoff. California’s ruling thus mandates that mental health professionals not only warn authorities but take steps to protect potential victims, clarifying the priority of safety over patient confidentiality and consent. Since then, a duty to warn and/or to protect has been adopted or permitted in 44 U.S. states and spread as a standard of care across the world.

In contrast to the Goldwater rule, which is based on one litigation 55 years ago, the Tarasoff doctrine has been relitigated almost 100 times and has been codified in numerous states. While state licensing bodies are not permitted to adopt the Goldwater rule, as it would violate the First Amendment, the Tarasoff doctrine, with each litigation, continues to challenge the argument that the provider is only responsible for what happens within the patient-provider relationship (Johnson, Persad, and Sisti, 2014).  For example, “The victim was not my patient,” “The information did not come from my patient,” or (in the case of universities) “The perpetrator was not a direct patient” are arguments that no longer hold (Regents of University of California v. Superior Court of Los Angeles County, 2018).

Currently, no provisions exist for reuniting or even finding the forcibly separated children, while the possibility of detaining entire families increases (Shear, Goodnough, and Haberman, 2018). The worst kind of childhood trauma is not overt physical abuse but absence and neglect. Disruption begins at the moment of separation, and no matter the later reunification, the experience of terror and trauma will have ingrained itself in the brain’s architecture and hormonal responses for a lifetime, if not generations. These are just some of the dangers that mental health professionals have predicted: they are signs of more to come, and the reason why we believe we have a duty to warn and the public has a right to know.

Further Reading:

By James Gilligan and Bandy X. Lee: https://www.usnews.com/opinion/thomas-jefferson-street/articles/2017-12-...

By Michael Tansey: https://medium.com/@tanseymj/clinical-perspective-why-the-trump-kim-summ...

References

American Psychiatric Association (2017). APA Reaffirms Support for Goldwater Rule.  Arlington, VA: American Psychiatric Association. Retrievable at: https://www.psychiatry.org/newsroom/news-releases/apa-reaffirms-support-for-goldwater-rule

Baranauckas, C. (2018). Seth Meyers rips trump’s ‘malignant narcissism’ and lies. Huffington Post. Retrievable at: https://www.huffingtonpost.com/entry/seth-meyers-trump-lies_us_5b2b1cbbe4b0040e273f6e81

BBC News (2018). Trump migrant separation policy: Children ‘in cages’ in Texas. BBC News. Retrievable at: https://www.bbc.com/news/world-us-canada-44518942

Felitti, V.J., Anda, R.F., Nordenberg, D., Williamson, D.F., Spitz, A.M., Edwards, V., Koss, M.P. and Marks, J.S. (1998). Relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults: The Adverse Childhood Experiences (ACE) Study. American Journal of Preventive Medicine, 14(4), 245-258.

Johnson, R., Persad, G., and Sisti, D. (2014). The Tarasoff rule: The implications of interstate variation and gaps in professional training. Journal of the American Academy of Psychiatry and the Law, 42(4), 469-477.

Karni, A. (2018). Washington’s growing obsession: The 25th Amendment. Politico. Retrievable at: https://www.politico.com/story/2018/01/03/trump-25th-amendment-mental-health-322625

Lee, B. X. (2018). Trump is now dangerous—that makes his mental health a matter of public interest. Guardian. Retrievable at: https://www.theguardian.com/commentisfree/2018/jan/07/donald-trump-dangerous-psychiatrist

Lind, D. (2018). The Trump administration’s separation of families at the border, explained. Vox. Retrievable at: https://www.vox.com/2018/6/11/17443198/children-immigrant-families-separated-parents

Plant, D. T., Barker, E. D., Waters, C. S., Pawlby, S., Pariante, C. M. (2013). Intergenerational transmission of maltreatment and psychopathology: The role of antenatal depression. Psychological Medicine, 43(3), 519–528.

Reuters (2018). Over 2,300 Children Separated from Parents at U.S.-Mexico Border from May 5 to June 9. Huffington Post. Retrievable at: https://www.huffingtonpost.com/entry/family-separation-at-border-reunification-process_us_5b29d9cfe4b05d6c16c8c48e

Santhanam, L. (2018). How the toxic stress of family separation can harm a child. PBS News Hour. Retrievable at: https://www.pbs.org/newshour/health/how-the-toxic-stress-of-family-separation-can-harm-a-child

Shear, M. D., Goodnough, A., and Haberman, M. (2018).  Trump retreats on separating families, but thousands may remain apart.  New York Times.  Retrievable at: https://www.nytimes.com/2018/06/20/us/politics/trump-immigration-children-executive-order.html

Shonkoff, J.P., Garner, A.S., Siegel, B.S., Dobbins, M.I., Earls, M.F., McGuinn, L., Pascoe, J., Wood, D.L., and Committee on Early Childhood, Adoption, and Dependent Care. (2012). The lifelong effects of early childhood adversity and toxic stress. Pediatrics, 129(1), e232-e246.

Snopes (2009). Dr. Sam Vaknin—Barack Obama is a Narcissist. Snopes. Retrievable at: https://www.snopes.com/fact-check/dr-sam-vaknin/