Wednesday, September 18, 2013

Speaking Ill of the Dead

I'm moving this discussion to its own post since it has little to do with mandatory employee health screening and I think it deserves its own section.

Jesse put up a link to a PBS news interview with Drs. E. Fuller Torrey and Elspeth Ritchie regarding Aaron Alexis, the alleged Navy yard shooter. This has spurred discussion about what, if anything, psychiatrists should be saying in the media about specific individuals with rumored mental illness.

I've gotten on a soapbox about this a number of times before and I don't want to be repetitive, so if you feel inclined you can search the blog for the labels "shooter psychology" and "spree killing." You can also read my Clinical Psychiatry News column about a similar situation, "Use of Psychological Profile to Infer Ivins' Guilt is Prolematic". (Titles are not my strong suit.) I wrote a followup column about this just last month when the president of the APA tweeted out a statement regarding the legal sanity of the Fort Hood shooter.

Honestly, at this point I feel like a broken record. (Oh dear, some of our readers have probably never played a record!)

In my opinion, no mental health professional should be making public statements about the legal sanity or mental state of a living criminal defendant prior to trial. Presently our APA ethical guidelines do not expressly forbid this, unfortunately. The guidelines make a generic caution against public statements regarding people we haven't personally examined in a principle known as the Goldwater rule. This has been interpreted to mean that public statements are OK as long as the professional makes an initial disclaimer that they have not personally examined the individual they're talking about.

This guideline was written and adopted before the Internet was invented, even before there were personal computers (back when people knew what 'records' were and what happened when they cracked).

I felt the time was ripe to bring this so-called Goldwater rule into the modern age, and I also felt strongly that we should include a specific caution or prohibition against public statements regarding criminal defendants. I drafted proposed language in an action paper which was later adopted by the APA. To my knowledge, the Goldwater rule is being revisited (and hopefully revised) right now.

But back to Aaron Alexis and the PBS interview. This is where it gets tricky. In contrast to the Fort Hood shooter, Jared Loughner and the Aurora theater shooter, this is a situation where people are making statements about a dead suspect rather than a living defendant. The impact on a dead person is, well, moot.

Nevertheless, there are ramifications to consider. Media statements may reinforce the notion of guilt in the public mind when the deceased was never actually tried or convicted, or any of the evidence put to the test. This was the case in the situation of the late Bruce Ivins, the anthrax mailing suspect. In that case the only physical evidence linking him to the crime was the genotype of the anthrax bacillus. This evidence was weak enough that FBI investigators were concerned it might not be admissible. He might have been innocent. The situation is slightly different for Aaron Alexis given that he was definitely at the scene of the crime and presumably the evidence of guilt might be stronger than in the Ivins case. But does that change our professional obligation to maintain respect for persons? At what point do we need to balance the real need for public education about mental illness, violence risk assessment and the pro's and con's of involuntary treatment against the distress of a surviving loved one? While public opinions about won't impact a dead suspect, they will impact the suspect's wife, children and siblings. Just ask the mother of the Columbine shooter.

This post is getting a bit long and I have other things to do, but I thought I'd spew out an initial reaction. There are also state laws about medical confidentiality which address the maintenance of confidentiality after death, but that's a topic for another post. Some confidential information might have become available to investigators when the suspect was still alive, in the heat of the incident when danger was imminent. Given that there will be no trial, we likely will never know. But these situations are bound to come up again so we should be prepared for these discussions.