Expert: Package to Holmes' Psychiatrist May Not be Privileged

Friday, July 27, 2012 - 4:34pm

AURORA, CO — A medical ethicist who is also a lawyer disputed an assertion of privilege made Friday by a lawyer for the suspect in last week's mass shooting inside a Colorado movie theater over the contents of a package he allegedly sent to his psychiatrist.

The key factor is whether she has information about the alleged crime, said Prof. Arthur Caplan, head of medical ethics at New York University's Langone Medical Center.

"Once there has been a crime, I believe, she has a duty to notify that she has information about that crime," said Prof. Arthur Caplan, head of medical ethics at New York University's Langone Medical Center, said Caplan.

Police can subpoena the record, he said, "and they would certainly get it."

James Holmes was a patient of a University of Colorado psychiatrist before the attack in Aurora, Colorado, which killed 12 people and wounded scores more, according to a court document filed Friday by his lawyers.

The disclosure was in a request by Holmes for authorities to hand over a package he sent to Dr. Lynne Fenton at the university's Anschutz Medical Campus.

According to Holmes' request, the package seized by authorities under a July 23 search warrant was a protected communication.

"The materials contained in that package include communications from Mr. Holmes to Dr. Fenton that Mr. Holmes asserts are privileged," said the document filed by public defenders representing Holmes. "Mr. Holmes was a psychiatric patient of Dr. Fenton, and his communications with her are protected."

In response, prosecutors asked District Court Judge William Blair Sylvester to deny the request, saying it contained inaccuracies, including claims of media leaks by government officials that may have been fabricated by news organizations.

Sylvester set a hearing on the request for Monday, the same day that Holmes is scheduled to be formally charged in the case.

Had the package contained clear threats and arrived before the shooting, there would be no question about the duty of the psychiatrist to hand it over to authorities, medical ethicist Caplan said.

"The standard is if you believe that your patient is an imminent, direct threat to another person, then you have to say something," Caplan said in a telephone interview.

Though psychiatrists have a duty not to abandon their patients, Fenton's treatment of Holmes is likely over, Caplan said. "It wouldn't be easy to do, given the arrest," he said. "In the real world, she's not going to see him any more."


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