On March 24, Germanwings Flight 9525 crashed in the French Alps. One hundred forty four passengers and six crew members died. It’s now believed that the co-pilot deliberately crashed the plane – killing himself and the people aboard it.
Germanwings is a subsidiary of Lufthansa airlines. The co-pilot had a history of depression going back to at least 2009.
According to CNN, there are five previous incidents with planes that may have been deliberately crashed by pilots: Nov. 29, 2013, Mozambique Airlines Flight 470, with 27 passengers and six crew members died in Bwabwata game park in Namibia; Oct. 31, 1999, EgyptAir Flight 990 with 202 passengers and 15 crew crashed into the ocean; Oct. 11, 1999, Air Botswana, a grounded pilot took a plane and crashed it into other planes on the ground – he was the only fatality; Dec. 19, 1997, SilkAir Flight 185, flight from Jakarta to Singapore crashed with 104 people, all of whom died; Aug. 21, 1994, RoyalAir Moroc Flight 630, on a flight from Agadin to Casablanca with 40 passengers and four crew members, the plane flew into the Atlas Mountains, killing all aboard.
Not everyone agrees that all of these incidents are examples of suicide that also resulted in the murder of many other people.
These incidents do raise a point about certain professions. Professions similar to airline pilots have an increased risk for society of great harm to others. A person committing suicide or other harm causing episode while engaged in their employment can impact other lives. Examples include bus drivers, policemen and military personnel.
Traditionally, we expect psychologists to maintain patient privilege except when there is a belief in the likelihood of death or grievous harm to the patient (suicide or attempted suicide) or to others at the hands of the patient (see Tarasoff V. Regents of the University of California). In a Tarasoff situation, there is an identifiable person who is the object of the future harm.
This analysis would apply in the airplane cases if the psychologist or other mental health professional, believes the patient is suicidal to the point of needing to be restrained or if the person to be harmed is identifiable.
What if neither of the above two conditions exists? Does the psychologist do nothing and hope that nothing bad happens? A psychologist may feel in the following bind: a) If the psychologist reports the patient or the patient’s believed intent, the psychologist may be breaching confidentiality or at least losing the chance to maintain future trust with this patient, or b) If the psychologist does not report, then some awful harm may occur resulting in liability.
In other areas of human activity, (such as child abuse), there are mandatory reporting statutes. In some instances, the law has provided restraint for patients who pose a general threat, such as for sexually dangerous people. Is there a way to clarify a general threat to the population as in the airplane cases?
Here are two possible suggestions: first, in the employment contract for each identified profession could be a paragraph about interviews with mental health professionals with the notice that the information from these interviews will be available to the employer. The employee would be waiving confidentiality to his/her employer under certain conditions. This tactic is not a complete solution, as unions will probably see it as an infringement on their members’ rights. It could also occur that the employees will secretly seek out help elsewhere or not seek help when it is actually needed, to avoid reporting the information to the employer. This contract might need to have a caveat that employees can have alternative work in non-harmful settings, if they are unable to perform the work that gives them access to the dangerous conditions.
Secondly, set up a state board to review situations, where a psychologist or the mental health professional who believes the conditions are threatening, can report. There are probably not a large number of these situations such that each hospital needs a board, and it is probably impractical for individual practices to hire or have such support. The board would have to maintain confidentiality so the membership of the board would be important.
A majority of the members should be mental health professionals, but there could be other “public” members. Having such a board would relieve an individual mental health worker from taking the risk and making the liability choices mentioned earlier and could better protect the public by giving the board the power to notify the employer.
In such incidents as the plane crashes, there need to be three conditions met: the inclination of the actor/perpetrator to do harm to him/herself or others; the means (plane, bus, weapon, etc.); and the opportunity.
The need to stop a future incident is to take away one of the three conditions. The two suggestions proposed here are attempts at removing the opportunity.
Edward M. Stern, J.D., has a private law practice in Newtonville, Mass., Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.
By Edward Stern J.D.