The Devil You Know

by Gwen Adshead

  There is a general consensus in the medical profession that in certain circumstances, such as when a serious enough risk of harm exists, it is justifiable to break a confidence. The question in Sam’s case was whether this was one of those instances, and whether there had been a proper process of looking at the risk and potential harm of not disclosing. I thought his carers could have justified disclosing to his parents that Sam was at liberty, and I had a number of pieces of evidence to support this. I also maintained that respecting patient confidentiality has never been synonymous with absolute secrecy.7

  Probably the most famous example demonstrating this is Tarasoff v. Regents of the University of California, wryly known as ‘the case that launched a thousand writs’.8 Tatiana Tarasoff was a student at the University of California, Berkeley who was murdered by Prosenjit Poddar, a fellow student who had become depressed after he tried to pursue a romantic relationship with her, which she reportedly rejected. Notably, this is one of the first recorded cases of ‘stalking behaviour’ (before it was known as such) as the precursor of a fatal assault. Poddar sought therapy for his depression, and when he revealed to the campus psychologist that he was having thoughts of killing Tatiana, they were so concerned they notified the campus police. Poddar was briefly questioned and detained, but he appeared to be rational and promised to leave Tatiana alone. After he was released, he terminated therapy at once and never went back. Three months later, he went to the young woman’s home, where he shot and stabbed her to death.

  The lawsuit her parents subsequently brought against the university and its employees alleged that they had failed in their duty to protect Tatiana and claimed that the psychologist should have breached Poddar’s confidentiality and warned their daughter. The suit was initially dismissed for ‘lack of cause’, but the Tarasoffs persisted, all the way to the state’s Supreme Court, which concluded that the university was immune from the lawsuit but that the Tarasoffs’ claim could succeed against the individual psychologist, who had failed in their ‘duty to warn’ the potential victim. There were vociferous protests from the psychiatric community, which argued that patients’ trust was essential, and people would be put off if they thought their information might be shared with third parties. Unusually, the Supreme Court reviewed its decision, but the second verdict supported the original view, with only slight modifications. It stated that if a therapist believes their patient poses a danger to a third party, then they ‘bear a duty to exercise reasonable care to protect the foreseeable victim from that danger’ and that ‘therapeutic privilege ends where public peril begins’. A wave of similar Tarasoff laws followed around the US, and even though American law is not operative in the UK, many cases relating to confidentiality here have referenced Tarasoff, and the GMC swiftly adopted guidelines about disclosures ‘in the public interest’. Even now, Tarasoff continues to be an important benchmark in the international discourse about confidentiality.

  In the opinion I wrote about Judith’s case, I argued that the team looking after Sam had not followed established guidance about confidentiality or properly considered the risk to his family. I was not saying that they were bad people or bad doctors, only that they had made a mistake, as we humans do. They had not fully considered the circumstances in which they could breach confidentiality and had made a faulty risk assessment when they allowed a patient like Sam to have community leave and failed to inform his parents. The result was tragic not only for the victims, but also for Sam.

  After submitting my report, I had to meet with the medical expert for the defendants. Dr B and I agreed on the basic facts, namely that Sam had been mentally unwell but had been doing better in the lead-up to the homicide, as borne out by the fact that he had been moved to an open ward and granted some leave, prior to his ‘escape’. We disagreed about the risk he posed to his family. Dr B said there was no prior evidence of any danger, whereas I referred to his parents’ letter to the consultant, which outlined several examples of historical violence towards them and suggested that Sam needed to be held in long-term care. I did concede that he was not known to have made any threats to his parents in the last few months before the homicide, but it was arbitrary to base the risk assessment only on that period rather than on the whole backstory of Sam’s life and illness. His parents were named as identifiable people in his circle who could be seen as ‘at risk’, and that was enough to justify at least a discussion about warning them, using both the GMC and similar NHS guidelines as professional cover.

  Dr B felt differently, saying there was not enough evidence to support my contentions and justify information-sharing, and he believed the hospital would have been subject to complaints and even legal action by Sam had they gone ahead. I responded that the medical team looking after Sam had involved Judith and Ralph in their clinical case reviews in the lead-up to the homicide. When Sam had not returned to the hospital from leave at the agreed time, alerting his parents might have helped prevent or reduce the risk of harm to them – I was thinking of that unlocked back door at their home. We were able to agree that it was usual practice to involve the immediate family in community leave decisions; it was just that Dr B suggested it was also reasonable practice not to do so. We set out our views in a joint statement and waited to see what would happen next. Either the case would go to trial or, more commonly, the litigants would reach a financial settlement on an undisclosed basis. Judith’s lawyers accurately predicted that the case would proceed due to its potential wider import; it might set a difficult precedent if it were settled out of court – and who knew how many similar suits would follow?

  On the day I was called to testify, I donned my court suit, of the same black, severely cut style favoured by barristers. Expert witnesses spend a lot of time and effort on creating their court ‘look’, and there are even expensive professional development courses that give guidance on how to do this. It would be foolish to pretend that appearances don’t count. I have found that blending in with the sober courtroom costume is a way of communicating that I understand my role in context, which is to assist the court by showing where my opinion fits with the legal questions. Although I had been retained by Judith’s team, my duty was to the court, not ‘the cause’. It was the judge that mattered most; their understanding was paramount.

  There is a lot of waiting around in court, but finally my turn came. I stood and took the oath. There are secular versions these days, but I chose to use the traditional language, ‘so help me God’. The job of the counsel for the hospital was to challenge my conclusions and undermine my arguments, in the nicest possible way. Good barristers don’t get excited or make dramatic gestures and statements. The best ones gently but firmly take you down a line of argument which, if you’re not careful, can lead to you contradicting your own opinion or saying something you don’t really mean. The counsel for the hospital trust began, ‘Dr Adshead, isn’t there a public interest in keeping patient confidentiality? If so, why do you say it should have been breached in this case?’ She went on in this vein: ‘You state that the plaintiff should have been told about her son’s community leave, but on what grounds?’ ‘You accepted that there was no evidence that the patient posed a risk to his parents on the day in question, is that correct?’ ‘And you accepted that the medical team held a view that was within the bounds of reasonable medical practice?’ ‘If your more extreme view was accepted, then no psychiatric patients would have a claim to confidentiality. Isn’t that discriminatory, and might it not cause some people, or their carers, to avoid seeking necessary medical assistance at all?’ This went on for a few hours, which wasn’t bad – I’ve known experts to be questioned like this for days.

  Her parting shot was to draw attention to the fact that I was a forensic psychiatrist and had been working in Broadmoor for most of my career. ‘You haven’t practised much as a general psychiatrist, Dr Adshead, have you? In fact, you’ve worked mainly with highly dangerous mentally ill people, many of whom have committed terrible and violent offenc
es, correct? Surely that has an effect on your perception of the degree of perceived “risk”’ – at this point, she allowed herself a little ‘scare quotes’ gesture for the benefit of the judge. All of this is the usual stuff of cross-examination. My job is to stick to my view and explain that while counsel’s questions may be interesting, they don’t undermine my opinion. I try not to appear dogmatic and remain equable at all times, even in the face of more provocative questioning, but we don’t always know how we come across in court. The outcome of a case can depend on how the judge is feeling that day, and how anxious they are about how the case appears to the public eye.

  I felt for the psychiatrist who had made the decision to give Sam community leave, even as I recognised that more weight ought to have been given to their duty to warn. All psychiatrists have to make risk assessments of their patients, knowing that once in a great while things do go badly wrong and those outlier cases will draw a lot of public attention and professional censure. It has not happened to me yet, but people I’ve known well have been at the centre of such calamities and I have seen the toll it takes on them. The stories always start in such ordinary, uncontroversial ways. I remember years ago, when one of my own general hospital patients went missing while on leave, like Sam had. He was being treated for mental illness and had a history of violence, but at that time, he appeared to be making good progress. The clinical team was in agreement with me that he could have community leave, and when the nurse informed me that he hadn’t returned on time and they were calling the police, I was deeply alarmed. ‘This is how it begins,’ I remember thinking, with a terrible knot in my stomach. I braced myself for the emergence of news of the worst kind – as well as the juggernaut of condemnation that was going to follow.

  As it happened, the man was found and returned to the ward before anything happened. But I still remember vividly how shaken I was, knowing full well that if he had taken drugs and perhaps got into a fight where he landed an unlucky blow, the morning papers would have been busy branding him a ‘monster’, and along with his victim and their family, I would have been connected with the tragedy for evermore. It was hard not to feel vulnerable and ashamed; if it had gone wrong, there would have been a mandatory inquiry into my role, as his responsible clinician, in the decision to allow him to leave secure care, and the press would have read this as incompetence or worse. If the inquiry had found that I had made a mistake, I would likely have been reported to the GMC and would have faced both losing my licence to practise and a potential civil action. I knew of one case like this where the victim’s family had made death threats to the psychiatrist involved, with a devastating impact on the doctor and their family. In another instance, a photo of the psychiatrist involved was splashed all over the national papers, under headlines like ‘Appalling Blunder’, and they were branded as ‘The doctor who let killer out of hospital’ and ‘put killer’s rights before public safety’.

  Judith lost her case against the hospital. The court found that the team treating Sam had no duty to prevent harm to her or Ralph, and while a mistake may have been made in his risk assessment, the duty to care for Sam had not been breached. I wasn’t surprised; the law always prefers certainties and clear evidence that can be analysed and tested. Such a framework doesn’t allow much room for addressing questions of duty between humans in close relationships, where there is always some emotional ambiguity and a shifting moral horizon. I understood that the court was ultimately not prepared to touch the difficult question of third-party duty of care, but I did question why there was no recognition that the harm he did to his parents would affect Sam’s own health dearly for years to come. When I encountered him in the hospital, long after this verdict, he was only beginning to grapple with the implications.

  *

  As I’ve described throughout this book, in order to reduce people’s risk, therapists need to help them talk about their history and what happened when the ‘bicycle lock’ clicked open for them; in our Homicide Group, this meant the moment of fatal violence. Only by describing this can members of our group take agency for their actions, which is usually marked by a move from a passive to an active voice in their self-narratives. That progression was first described to me when I was training with Murray Cox, my mentor, who loved the metaphor of the dark lamp (as I mentioned in the Introduction) and paid such exquisite attention to language. He described how a patient moves from ‘I don’t know what you’re talking about’ to ‘It wasn’t me’ to ‘It was me, but I was mentally ill at the time’ to ‘I did it when I was mentally ill,’ until they finally land on ‘I did it.’ Cox called this coming to terms with one’s actions a ‘scala integrata’. Today, when I work with trainees, I describe this process as a via dolorosa, where every mental footstep is painful and sometimes all a therapist can do is be a companion on the journey.

  After the Homicide Group session where Sam had first mentioned his parents’ long marriage, he thawed some more and was able to talk about them more freely, when prompted by the dynamic in the group. On one occasion the men came in talking about the reality TV show Big Brother and their dislike of the idea that viewers were watching for people to fail, judging them in order to vote them out. This led to a fascinating discussion of how they each felt about the lack of privacy in prison and hospital. Kaz joked that the female therapists were like Big Sisters, not only watching them all the time, but scrutinising their every word. Before I could explore that comparison, with its authoritarian and punitive connotations, any further, Sam joined in. He talked about how as a teen he used to feel as if he were ‘behind a glass wall’, constantly watched and worried over by his hyper-anxious parents, who treated him like he was a baby all the time. The way he told it, it seemed as if they were neither his parents nor his victims but people he didn’t know, members of an anonymous audience. But gradually, as he went on, I sensed he was moving along Murray Cox’s scala integrata: he was beginning to take some personal responsibility.

  After nearly a year, he arrived at a point where he no longer referred to his offence as his ‘index’ but was able to say, ‘When I killed my dad …’ It is always quite a moment when someone manages this transition, and I remember well the day it happened. He started by describing the morning of the day of the murder, a cool day in October, a decade earlier. He recalled his relief when he managed to get away from his nursing escort after they left the hospital grounds to go to the corner shop. He said he walked quickly at first, looking back over his shoulder, then broke into a run to put as much distance as he could between him and the hospital. After a while, he realised he was approaching the area where his parents lived. He wasn’t ready to go there, so he made his way to a squat down by the river where he knew a few guys. He was sweating and desperate for a drink, and someone gave him a lager and a pill – he wasn’t sure what it was. He’d lost some time, maybe passed out for a bit, he told us. When he woke, there were sirens, police, flashing lights, and the others were scattering in all directions. He was disoriented and afraid, but he got away without being caught. He turned towards his parents’ house. Sam paused at this point, I remember, and answered the question forming in my mind before I could ask it: ‘I don’t know why … I guess it was home.’ It was late by that time, he said, and he slipped around the back of the house. He saw through the window that his dad was making tea in the kitchen and his mum was in the utility room doing some ironing.

  He said he stood outside watching for a while, ‘like it was a movie or something’, and I pictured him out there in the cold night, observing the domestic scene within. I imagined a view of Judith and Ralph chatting in dumbshow, she perhaps enlisting his help in folding some sheets. I could understand how their homely companionship might seem to Sam as remote and exclusive as anything Hollywood could manufacture. He didn’t elaborate on what in particular irked him about the tableau through the window, but he told us he got cold and started to feel angry. He approached the back door to look for the spare key under the planter, but then
tried the door and found it was open. At that point in his tale Sam paused to take a deep breath, and we all sat quietly, waiting for him to go on, sensing that the next part might be hard for him and for us. As so often happened in that group, I felt the awesome responsibility of bearing witness to horror. Eventually, after we had held our silence for a few minutes, I thought he might feel he’d said enough for one day. Nonetheless, I asked, ‘Sam, do you want to say any more?’

  ‘I want a drink,’ he blurted, abrupt and loud. At first, I thought he was talking about now, but no, he was back in that garden at home, speaking of himself in the historic present. His eyes were unfocused, fixed on the blank white wall behind my head. ‘I need money. I need to get some coke. I’m sleepy, I’m cold … I’m afraid.’ He furrowed his brow and wrapped his arms around himself as he said this, his voice tense and low. ‘I think someone’s followed me, man. The police are after me, I have to get inside, hide my face. I can’t see my mum and my dad … There’s my dad.’ He swallowed hard, then went on: ‘He’s looking at me like I’m the worst thing that’s ever happened to him … He’s not best pleased. I mean, he looks fucking terrified, and I’m thinking, “That’s not right, you shouldn’t be scared, you should be glad to see me, I’m your son.”’

  His speech was accelerating. Everyone in the group sat perfectly still, letting the story flow into the space between us. This quiet collaboration of listeners, like a silent orchestra following a lone oboe solo, their bows or instruments poised in mid-air, is quite remarkable to experience. In a group like this, after years of practice, I know when to set aside my conductor’s baton and let things flow. ‘So Dad’s saying, “Sam? What are you doing here? You’re meant to be in hospital.” And now I’m thinking, “That’s not much of a welcome, is it? Hasn’t even asked how I’m doing or anything.” I’m fucking angry, and I’m thinking, you know, “He’s probably the one that called the police on me.” And then he says, “Sammy” – like when I was a teenager, that babyish stupid nickname – “Sammy, I think you should go.” And I’m thinking, “Man, that’s it, even my dad hates me now.”’