Colorado Shrink Missed Batman Killer's Diagnosis

by John M. Curtis
(310) 204-8700

Copyright August 1, 2012
All Rights Reserved.                                         

            When 24-year-old neuroscience Ph.D. student James E. Holmes massacred 12 innocent moviegoers at the midnight premier of “The Dark Night Rises” in Aurora, Colorado July 20, no one knew he was under psychiatric care of Dr. Lynne Fenton at the University of Colorado Medical Center.  “Mr. Holmes was a psychiatric patient of Dr. Fenton, and his communications with her are protected,” said an Arapahoe County Court filing by Holmes’ defense attorneys.  Defense attorneys want Arapahoe County District Attorney Douglas Elbert to turn over evidence obtained from two sealed packages sent to Dr. Fenton before his July 20 rampage.  Media reports suggest the packages contain details of Holmes’ plan to commit bodily injury and mayhem.  Suggesting that Holmes’ rights to confidentiality under Federal or Colorado law prevent disclosure are preposterous.

            Federal and state laws shield mental health practitioners, explicitly providing exceptions to privileged communications in cases involving dangerousness or threats of bodily injury.  If Dr. Fenton viewed Mr. Holmes as dangerous, she had a legal obligation to breach confidentiality and notify the police to protect innocent bystanders.  Serving as medical director of Student Mental Health Services at the University of Colorado-Denver Anschutz Medical Campus, Fenton worked on schizophrenia research under a two-year grant from the U.S. Dept. of Veteran Affairs [2008-2009].  In addition to teaching responsibilities, Fenton also served on the medical center’s Behavioral Assessment and Threat-Assessment Team, responsible for ascertaining dangerousness, especially in the wake of the April 16, 2007 Virginia Tech massacre where some 32 students and faculty lost their lives.

            Calling for tightening up gun laws, President Barack Obama promised after meeting with families of Holmes’ attack that he would “leave no stone unturned” when it came to keeping guns out of the hands of mentally ill gun buyers.  GOP presidential candidate former Massachusetts Gov. Mitt Romney insists no further laws are needed because what Holmes did was already illegal.  Mitt, and his Second Amendment backers at the National Rifle Association, surely doesn’t believe that guns should be sold to the mentally ill.  Current federal gun laws require Department of Justice background checks giving past criminal records.  Holmes had no criminal record but he did have a medical record documenting mental illness.  Had federal law required a Medical Information Bureau background check, Holmes mental health treatment would have popped up on his computer records.

            Fenton’s specialty, serving on the Behavioral Assessment and Threat Team, involved assessing for violence.  Assessing “individuals who may be threatening, disruptive or otherwise problematic” required Fenton to take action to protect the public against potential violence. Whether Fenton cared for Holmes under the Behavioral Assessment and Threat Team or not, she was still required to report Holmes’ violent propensities to Colorado authorities.  Failing to report could cost licensed mental health professionals their licenses.  Colorado law excuses mental health practitioners’ botched diagnoses only if patients are not a “serious threat of imminent physical violence against a specific person or persons,” saying nothing of the “duty to warn” statute.  Botched diagnoses do not excuse clinicians’ duty to warn possible victims and authorities under applicable state and federal reporting laws.

            Failing to return calls to news organizations, the University of Colorado Medical Center and Fenton have ducked all media inquiries into their abysmal lack of action.  Citing confidentiality concerns, Fenton had a duty to warn potential victims, not withhold information because of protected medical records.  Since the 1969 Tarasoff v. Board of Regents, mental health practitioners have had a duty to warn possible victims of violence and are specifically shielded from liability for violating privileged communication.  Fenton was required to notify potential victims, or at the very least, to try to intercept violent acts before they occur.  Whether or not Fenton ever opened up the packages, she was still required to apply her best clinical judgment and notify authorities regarding the possibility of violence.  Her case records will show decisively whether the psychiatrist completely missed all the warning signs.

            Intercepting violence is no easy matter.  Trained mental health practitioners bear increasing responsibilities to protect the public, not patients’ confidential medical records.  If Fenton’s medical records indicate that Holmes was potentially violent, Fenton and the Univ. of Colorado Medical Center bear liability for Holmes’ murders.  Second Amendment advocates, like Romney, can’t deny law enforcement better tools to prevent the mentally ill from buying guns and ammo in retail stores or on the Internet.  If Congress included the Medical Information Bureau with DOJ checks, it would go a long way in preventing the mentally ill from buying guns.  Mitt’s right that it won’t prevent gun violence.  But at least gun dealers would not automatically sell guns to ambulatory schizophrenics and other garden-variety psychotics.  Whatever happens to Holmes, Fenton must also be investigated.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com.and author of Dodging the Bullet and Operation Charisma.

©1999-2012 Discobolos Consulting Services, Inc.
(310) 204-8300
All Rights Reserved.