Could therapists serve prison time for patients' crimes?

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If psychiatrists and the American Psychiatric Association (as well as psychologists and other mental health professionals) don’t work in earnest, and lobby hard for real measures to create a mental health care system that actually safeguards the public from dangerous individuals, they may find themselves looking at jail time for the violent acts of their patients.

While it hasn’t happened in America yet, on December 18, 2012, a French court convicted psychiatrist Daniele Canarelli of involuntary manslaughter and handed her a one-year prison term for mismanaging the psychiatric care of Joel Gaillard, her patient of four years.

Gaillard killed an elderly man with an axe in 2004, 20 days after fleeing a session with Canarelli at Marseilles's Edouard Toulouse hospital. He was found not responsible for his actions because of his severe mental illness.

This almost incredible miscarriage of justice converts malpractice into a crime and suggests that mental health care providers ought pay the entire price for broken systems of care that have too few resources for violent patients and leave so many of them unmonitored, unhospitalized and undertreated.

America, as I have said repeatedly, has a shoddy, shattered, under-funded, embarrassing excuse for a mental health care system.  And rather than actually do the hard work of fixing it, it is certainly possible some legislator or judge somewhere will follow the French model and try to pretend it is all the fault of incompetent clinicians.

By this French standard, psychiatrists and psychologists who may have tried and failed to help men like James Holmes, the shooter at the Batman premier in Aurora, Colo., and Adam Lanza, the shooter at the Sandy Hook Elementary School in Newtown, Conn., aren’t just at risk for monetary damages to be paid by their insurers, but are also at risk of being charged with murder themselves.

If you think that the United States is immune to the French precedent, consider this:  California has criminalized consensual sexual contact between a therapist and patient (something which rational legislatures would recognize as malpractice, not a crime).

And California has also criminalized reparative therapy for minors—in which therapists aid young people who identify themselves as heterosexual and have unwanted, intrusive homosexual thoughts (something which would also be malpractice, if the patient were to assert he had been harmed by it, and could prove it to a jury).

So, let me be clear in hopes that we can head off any mindless mimicking of the French mentality, which I predict would most likely be mimicked first by the bankrupt state of California:  Sending psychiatrists or psychologists or social workers to jail for malpractice when patients act violently would only lead to such professionals refusing to treat such patients, because there is at present no real infrastructure such professionals can partner with in order to prevent violent acts.

In those cases, in which big problems need solutions—whether the budget or the mental health care system—there are two kinds of people who seek to participate:  Those who want to work hard and make tough choices and effect real change and those who want to pontificate and take dramatic, often foolish steps that cover up the problem with a kneejerk reaction.

Gun control advocates who seized on the Sandy Hook tragedy, by the way, are of that kneejerk variety.  Most mass shootings don’t involve automatic or semi-automatic weapons.  All of the recent mass shootings involve mentally ill people who weren’t properly treated or triaged.  That should, of course, end that debate, but it won’t, because you can’t get people to do real work most of the time, even to save lives.

So, let’s be careful that if anyone actually has the taste to fix our mental health care system, that they not get distracted by any witch hunt for the medical professionals who could help get the job done.