03/27/2015 04:31 EDT | Updated 05/27/2015 05:59 EDT

Do psychiatrists have a duty to warn? If they believe patient will harm, yes

TORONTO - Emerging evidence in the investigation into Germanwings co-pilot Andreas Lubitz is raising suspicions he may have suffered from mental health problems which he hid from his employer.

And that, in turn, is raising questions of whether a mental health professional has a duty to warn authorities if he or she thinks a patient is likely to be a threat to others.

The short answer to that question is yes.

Let's take a look at this issue:

Q: What is the evidence that suggests Lubitz had mental health problems?

A: It's early in the investigation, and information could change. But German media are reporting the co-pilot had been treated for depression. And the New York Times is reporting that among Lubitz's papers were several doctors notes stating he was too ill to work, including one for the day he seems to have deliberately crashed the plane he was co-piloting.

Q: If Lubitz was under the care of a mental health professional, was that person duty-bound to warn authorities if it appeared Lubitz posed a risk to his airline's passengers?

A: Psychiatrists, like other medical professionals, are bound by laws of confidentiality. They must keep private the information they learn from their patients. That said, courts have ruled that at times the duty to a patient is superseded by the duty to warn or protect others.

Q: How has this played out in the courts?

A: A pivotal case occurred in the 1970s and involved a California psychologist who was counselling a student at the University of California at Berkeley. In counselling, the student threatened to kill another student, Tatiana Tarasoff. The therapist took the threat seriously and alerted campus police. They briefly detained the student, but let him go. No one warned Tarasoff, and in October 1969 she was murdered. Her parents sued.

From this case came the understanding that health professionals not only had a duty to warn that a patient might be a threat to others, but that warning wasn't enough if it didn't protect the possible victim.

Q: What have the courts said in Canada?

A: Here the rules are guided by a Supreme Court decision from 1999 in a case called Smith vs. Jones. A psychiatrist, John Smith, did a psychiatric evaluation at the behest of the defence lawyers for James Jones, accused of aggravated sexual assault. During the session, Jones disclosed plans to kidnap, rape and kill prostitutes.

Smith applied to the courts for the right to disclose the confidential information. Lawyers for Jones attempted to block Smith. The case ended up before the Supreme Court of Canada, which ruled that doctor-patient confidentiality is not absolute and may have to be breached if there is a danger to the public.

Q: How is that applied here?

A: It is spelled out in a policy paper from the Canadian Psychiatric Association entitled The Duty to Protect. It can be read here:

The association interprets the Supreme Court ruling to mean that doctors do have a duty to disclose information they've been told by patients if they believe those patients pose a danger. And it tells members to warn patients that there are limits to confidentiality.

The association notes the Supreme Court did not stipulate exactly how medical professionals should discharge their duty to protect, but says the steps could include detaining a patient believed to be dangerous, treating that patient or breaching confidentiality by informing the police or the intended target of the violence.

Q: If a doctor felt that Lubitz should not have been working, is writing a sick note an adequate response?

A: No, says Dr. Jeff Daskalakis, chief of the mood and anxiety division at the Toronto's Centre for Addiction and Mental Health. Daskalakis says if a doctor felt the pilot wasn't well enough to work, that doctor should have informed the airline.

"Without laying blame on anyone, doesn't it behoove the individual person who is making that decision to contact the proper authorities to ensure that those kinds of critical decisions are communicated properly?" Daskalakis asks.

"If you feel that there's a remote risk that this person has any kind of violent ideas and they're flying a plane, then I think it's essential, it behooves you to contact and notify the right authorities to make sure that both the person and the people that this person is responsible for are safe."