The new preventive detention: Psychiatry's problematic responsibility for the control of violence

The legal doctrine of the duty to protect potential victims of patients' violent acts has created problems beyond those usually discussed, which involve breach of patients' confidentiality. Fear of liability has led some psychiatrists to hospitalize, solely for the purpose of preventing violence, patients who do not otherwise require inpatient care. The result has been the creation of a de facto system of preventive detention that consumes psychiatric resources intended to serve therapeutic ends and compels psychiatrists to share the social control responsibilities of the criminal justice system. The author explores the costs and benefits of various means of removing the burden of preventive detention from psychiatry. VioLit summary: OBJECTIVE: The purpose of this paper by Appelbaum was to examine a number of issues surrounding the role of psychiatrists in protecting the community via preventive detention of dangerous patients. METHODOLOGY: The author employed a non-experimental explanatory study to evaluate the costs and benefits of various methods for alleviating the burden of preventive detention from psychiatrists. FINDINGS/DISCUSSION: Judicial initiatives over the last decade have mandated that psychiatrists protect potential victims from their patients' violence and aggression. However, psychiatrists have protested these requirements with two basic concerns - firstly, that these rules would be futile since clinicians could not predict dangerousness, and secondly, that they would be harmful, since patients who needed treatment might be inclined to refuse it due to questions about confidentiality. One of the most salient issues concerning this duty to protect is that some clinicians could be practicing preventive detention of individuals who might be violent in order to reduce chances of potential liability. That is, an individual who might or might not be mentally ill is hospitalized for the sole purpose of preventing him or her from behaving violently. Whilst such practice has long been employed by those in the field of mental health, its history has been fraught with much controversy in both law and psychiatry in the United States. Detention can occur either before the commission of an illegal act, after the commission of a dangerous criminal act that caused no harm, or after a criminal act that did lead to physical harm. It can follow a finding of criminal guilt, or it can be facilitated by some noncriminal mechanism; detention can conform with the usual limits of confinement for such an offense or it can exceed prescribed limits. Detention before a guilty verdict or exceeding usual limits of confinement are considered to be unconstitutional, as they do not allow for due process - preventive detention is often seen as falling into these categories. However, as much as society abhors violation of an individual's constitutional rights, it has also been in favor of preventive detention from a practical standpoint - bail decisions, for example, consider the likelihood of a person re-offending whilst out on bail, and often involve the practice of preventive detention. Preventive detention might be a necessary function in today's society, although psychiatrists point to patient treatment, rather than detention of a potential criminal, as the primary goal of their role in involuntary commitment. However, the argument of patient treatment can only be applied if the individual can be and is treated in the setting in which he or she has been detained, and for only as long as is necessary for success. Any detention over and above these criteria results in pure preventive detention. According to the author, this situation is occurring today, as psychiatrists are being asked to assume responsibility for the protection of potential victims. Beginning with the Tarasoff case in 1976, clinicians have been expected to hospitalize an individual if this is the only means to control violent behavior. This new preventive detention in psychiatry is seen in many forms - in the emergency rooms of psychiatric facilities, where people are detained purely on the basis of potential dangerousness, with no consideration given to therapeutic decisions; in situations where people are initially detained for treatment, but are subsequently held for preventive purposes after treatment benefits have ended; and in instances where the police cannot hold an individual due to lack of evidence, but where the psychiatrist has reason to believe that the patient has committed a violent crime and could continue to behave in such a fashion. In all these cases, psychiatrists must act to reduce liability, at the same time as maintaining their beliefs about appropriate psychiatric care and attempting to prevent the psychiatric institution from becoming a de facto detention center. The effects of psychiatric participation in preventive detention are widespread, and they begin with a distorting influence upon admission and release decisions, and concerns regarding civil liberties. People who are detained and who cannot benefit from treatment are taking up valuable space and resources in psychiatric facilities, and are diverting attention from those who are in greater need of treatment and care. They disrupt the care of legitimate patients, and present practical and safety problems to staff who are not equipped to deal with such violence. Psychiatrists are forced to act as policemen, and to spend much time and effort in securing themselves from threats of liability. On the positive side, preventive detention might have made society somewhat safer - however, we have yet to discover if psychiatrists' powers of prediction are accurate enough to warrant this responsibility. If the costs of psychiatric preventive detention outweigh the benefits, the issue of removing this burden from psychiatry must be addressed. Psychiatry could develop guidelines that allow psychiatrists to hospitalize only those people who require treatment, and to discharge all individuals as soon as treatment benefits have been fulfilled - in effect psychiatrists would be refusing to act as agents of preventive detention. However, psychiatrists will sometimes fail to resist the pressure of acting for preventive detention, thus weakening the stand of the group as a whole. Another problem with this approach is that courts have held mental health professionals to lay standards of reasonable behavior, such that professional standards and rules of confidentiality and treatment are not held to be valid. Another approach might be to alter legal stipulations such that professionals who refuse to participate in preventive detention would not be held liable for patients' actions. However, no consensus has been reached as to the criteria for hospitalization, with the result that some professionals view potential violence as a perfectly valid reason for detention, and they can find a DSM-III diagnosis to fit the dangerous individual's behavior patterns. Limiting the duty of psychiatry to protect in general has already begun, as statutes in a number of states restrict liability for failure to protect potential victims to situations where specific threats have been made against particular people, and allow for a discharge of duty when the police and/or the potential victim are notified of the possible danger. AUTHOR'S RECOMMENDATIONS: The author suggested that psychiatry would be better off if relieved of the duty of participating in preventive detention, and that society would benefit from open debate about the issue, and, if some form of preventive detention is deemed necessary, for the provisions to be implemented outside of the mental health system. EVALUATION: The author presents an informative and interesting examination of some of the issues surrounding the use of psychiatry as a tool for preventive detention. He clearly discusses the theory of such actions, and provides some valuable case studies as examples of what can happen when psychiatry is caught in the legal web of prediction of dangerousness. The author's suggestions for responding to the call for preventive detention are insightful, and his recommendations for future policy, although brief, represent a thoughtfully considered view. Overall, this paper should be seen as a valuable work in the area of prediction of dangerousness and preventive detention, and the evaluations of approaches that were offered in this work should be heeded by policy planners and by psychiatrists alike. (CSPV Abstract - Copyright © 1992-2007 by the Center for the Study and Prevention of Violence, Institute of Behavioral Science, Regents of the University of Colorado) KW - Mental Health Personnel KW - Dangerousness Prediction KW - Adult Violence KW - Adult Patient KW - Adult Offender KW - Adult Aggression KW - Violence Prediction KW - Violence Prevention KW - Mental Health Patient KW - Aggression Prediction KW - Aggression Prevention KW - Patient Aggression KW - Patient Violence KW - Physical Aggression Language: en