Homicidal Insanity, 1800-1985

9. Prediction, Confidentiality, and the Duty to Warn

Prediction, Confidentiality, and the Duty to Warn After 1960 civil libertarians invaded the cloistered, stable world of ideas in American psychiatry. Physicians suddenly found that the concept ofdangerousness in mental illness emerged as a prominent theoretical issue. When mental patients began to challenge the doctrine ofparens patriae, the legal justification for involuntary commitment shifted from the need for treatment and the right of the state to impose it to the protection of society. The suddenly magnified standard of dangerousness as a test for commitability demonstrated the ambiguity of the concept. In the absence of explicit definition of the criterion of "dangerous to self or others," the difficulties ofjustly applying the diagnosis of dangerousness in practical situations became evident. Dangerousness and Involuntary Commitment The American Bar Association undertook a study of state commitment statutes and published the findings in 1961. The study showed that, of thirty-seven jurisdictions, only five specified that the sole criterion for involuntary commitment was danger to self or others. Twelve other jurisdictions specified dangerousness as 120 Prediction 121 one factor, but augmented their statutes with the doctrine ofparens patriae. I None, however, defined dangerousness or how it was to be assessed. A number of legal decisions throughout the 1960s called attention to the civil consequences of the diagnosis of dangerousness and the inadequacy ofthe diagnostic criteria. For example, Saleem A. Shah, chiefofthe Center for Studies ofCrime and Delinquency, National Institute of Mental Health, identified fifteen decision points in the criminal-justice and mental-health systems where the criterion of dangerousness was applied in the absence of definition . 2 He and Alexander D. Brooks, professor of law at Rutgers University, specified the consequences of a diagnosis of dangerousness: (I) a lengthy, even indeterminate, involuntary confinement to a mental hospital; (2) in some states, transfer to a maximum-security hospital for the criminally insane, though the patient may not yet have committed any crime; (3) in some states, imprisonment rather than confinement in a hospital; (4) proof, usually by the patient, of nondangerousness as a condition of release . Brooks's review ofthe legislative judicial, and medical attempts to define the concept showed that, as in the nineteenth and early twentieth century, dangerousness encompassed, in addition to physical injury to another person, minor violations of law, emotional injury, and injury to property. He concluded that psychiatric experts therefore supplied their own "idiosyncratic legal views, [their] personal set ofvalues about the protection ofpersons and society, and [their] hidden agendas about appropriate dispositions ofthe mentally ill."3 Despite these theoretical defects, the trend toward using a standard ofdangerousness continued; by 1974 twenty-nine states specified that the standard for involuntary commitment was "dangerous to self or others," but in none of these statutes was dangerousness defined.4 Furthermore, the responsibility for making the diagnosis increasingly devolved upon the profession of psychiatry, which faced the problem of predicting dangerous behavior in unambiguous terms. 122 Homicidal Insanity, 1800-I 985 The Search for Predictors Because of this change in the laws, during the 1960s psychiatrists began to reconsider earlier studies on post-institutional dangerousness . These had done little to convince practitioners that mental patients were not dangerous and had little effect upon the problem ofovercrowded mental hospitals. These traditional studies presented a number of methodological problems and left questions about the composition of research populations as well as the definition of dangerousness unanswered. Yet, it was noted in the 1970s, as before, that the results of such studies showed that released mental patients were no more dangerous to the community in terms of major crimes committed than was the general population . 5 But other, and now new, studies of post-institutional dangerousness showed different results. In 1965 Jonas R. Rappeport and George Lassen, of the University of Maryland School of Medicine , studied populations of released mental patients by comparing arrest rates for serious crimes; their results showed that patients who had been diagnosed as schizophrenic and antisocial did in fact account for most cases ofviolent crime. Rappeport and Lassen believed , however, that no positive correlation existed between any diagnosed psychiatric disorder and dangerousness. They maintained that "arrests of ex-mental hospital patients were very largely concentrated in a relatively small, rather well-demarcated group of persons with previous criminal records, and their antisocial behavior was clearly correlated with well-known factors which operate in the general population and are not correlated with the factors ofmental illness except in a negative way...