Therapists' Obligations to Report Their Patients' Criminal Acts Paul S. Appelbaum, MD; and Alan Meisel, JD The law govemlng the obligation of therapists to report their patients' previous criminal acts was reviewed. Most often, discussions of this subject fall under the general category of "misprision of a felony," that is, the presumed general obligation of all citizens to report felonies that come to their Ittentlon. Review of federal law revealed that the courts have consistently interpreted the federal misprision statute as requiring active concealment of a crime, not a mere failure to report, in order to convict for the offen... State law Is more diverse. Only one state has a general misprision statute labeled as such, and ..veral states have recently repealed such statutes. The strong trend In states without statutes Is to reject misprision as a common law crime, becuase of Its Incompatibility with modem notions of justice. Most states, however, have limited reporting statutes, such as for child abuse or gunshot wounds, that Impose similar obligations. Therapists' reporting of past crimes may be affected by clinical and ethical concems, as well as by obligations to protect future victims. In almost all jurisdictions, however, the fear of prosecution for failure to report a past crime should not be a factor in deciding on a course of action. Is a psychotherapist required to report patients' past crimes-when they consti­ Crimes committed by patients that are tute felonies, and particularly when they brought to light in the course of therapy? involve threats on the President or other Are there special considerations when federal officials-may itself be criminal. the crimes involve acts of treason or Our review of the relevant law leads threats to the safety of the President of us to conclude that careful analysis does the United States? We have been asked not support this common response: This these questions dozens of times; they are conclusion must be distinguished from asked repeatedly at continuing educa­ the conclusion to the closely related, and tion sessions and raised in the psychiat­ probably more familiar, issue of whether ric literature. I Most frequently the an­ or not psychotherapists must report pa­ sWers given are that the failure to report tients' threats of committing crimes in the future, the issue thrust into the lime­ light by the Tarasoffcase a decade agO.2 llr. Appelbaum is A. F. Zeleznik Professor of Psychiatry ----and director, Law and Psychiatry Program, University While an increasing number of states : Massachusetts Medical School. Mr. Meisel is profes­ require psychotherapists to issue a warn­ Stf of law and psychiatry, University of Pittsburgh hools of Law and Medicine. ing about a patients' intended dangerous ~ddress correspondence reprint requests to Dr. Appel­ conduct (or to take other kinds of steps St urn at the University of Massachusetts Medical to prevent it from materializing),) there \V hOOI, Department of Psychiatry, 55 Lake Ave. North, OfCester, Massachusetts 01605. is no similar general requirement as to lIuli Am Acad Psychiatry Law, Vol. 14, No.3, 1986 221 Appelbaum and Meisel completed criminal conduct, "danger­ simply invented them. Concerned about her ous" or not, of which the psychothera­ obligation to report the patient's confession, as well as about her responsibility to protect the pist becomes aware. Finally, the issue confidentiality of the therapeutic setting, she under consideration here is not whether sought advice about the appropriate nature of a therapist may disclose a patient's her response. confessions of crime, but whether there The particular criminal charges for must be such a disclosure lest the thera­ which psychotherapists are often pist also run afoul of the criminal law. thought to be at risk when they fail to However, if our conclusion that there is report their patients' confessions of no duty to report patients' confessions criminal activity belong to a class of of crimes is correct, then the issue arises offenses referred to as "inchoate" crimes of whether it is permissible to do so and include the crimes known as mis­ without incurring liability for breach of prision of a felony and accessory after confidentiality. the fact, as well as the closely related The Clinical Setting offense of obstruction of justice. These The following case example, from the inchoate offenses originated in English senior author's consultative experience, common law, were often adopted by demonstrates the situations in which the American courts and thereby incorpO­ question of reporting can arise and the rated into American common law, and complexities often associated with the have sometimes found their way into Issue. contemporary American criminal stat­ utes. Because the legal issues raised Clue Example A middle-aged, chronic schiz­ ophrenic patient with a fluid delusional system about therapists' reporting obligations and a preoccupation with publicized acts of differ under federal and state law, these violence had been in treatment with the same bodies of law will be considered sepa­ psychiatric resident for two years. During that rately. time, he had confessed to this doctor his re­ sponsibility for numerous crimes, including Therapists' Obligations under several murders, that had occurred around the country. As these confessions seemed highly Federal Law improbable and consistent with the patient's Misprision of a felony has been a stat­ grandiose delusional structure, the resident dis­ utory offense under federal law since regarded them. 4 At their most recent therapy session, the patient 1790. The current statute, which differs told his doctor about a murder he had allegedly little from the original one, defines the committed at a rooming house for transients crime in these terms: in another part of the city. He provided an unusually detailed description of the crime Whoever, having knowledge of the actual com­ scene and of the victim. The police, he claimed, mission of a felony cognizable by a court oftbe were unaware that the murder had occurred. United States, conceals and does not as SOOn Although the resident had previously shrugged as possible make known the same to some off many similar confessions, this one disturbed judge or other person in civil or military aU­ her. The patient's tone was different, the alleged thority under the United States, shall be fined site of the crime was nearby, and he seemed to not more than $500.00 or imprisoned not more know too many details of the murder to have than three years, or both.s 222 Bull Am Psychiatry Law, Vol. 14, No.3, 1986 Therapists' Obligations Concerning Patients' Criminal Acts The statute was apparently little used disclose" is the same as in the general for 150 years after its passage. A federal misprision statuteY We have not been court concluded in the 1930s that only able to find a case in which this latter two previous cases had ever reached the statute was interpreted by a federal appellate leve1. 6 More recently there has court. been a flurry of cases decided on mispri­ Are there actions of the therapist that sion, as prosecutors have engaged in might be construed as "concealment" SOme creative uses of the statute. sufficient to bring the therapist within The rule enunciated in u.s. v. Farrar, the scope of the federal misprision stat­ however, the first case in this century to utes? First, it is important to note that address the misprision statute, has been federal criminal law, as a general matter, accepted in all subsequent cases.4 Ex­ has a very limited scope of applicability amining the language of the statute, and and is unlikely to apply to most thera­ Particularly the portion reading "con­ peutic situations. In other words, most ceals and does not as soon as possible conduct that is criminal is a violation of lllake known," the court concluded that state law, not federal law. However, it is the law "requires both concealment and conceivable that the actions of a thera­ failure to disclose. Under it some affirm­ pist could implicate federal criminal ative act toward the concealment of the statutes, such as when the patient has felony is necessary. Mere silence after committed either a crime against a fed­ knowledge of the commission of the eral official or treason. Crime is not sufficient." This rule was Assuming that there is federal jurisdic­ elaborated in Neal v. u.s. into a four­ tion, other questions remain to be an­ Part test for establishing that the crime swered. Among the actions that have of misprision had occurred: (1) the prin­ been recognized by the courts as "con­ Cipal committed and completed the cealment" are "suppression of evidence, felony alleged, (2) the defendant had full harboring of the criminal, intimidation knOWledge of that fact, (3) the defendant of witnesses, "6 aiding in the recovery of failed to notify authorities, and (4) the stolen money, 13 and holding money that defendant took an affirmative step to is being used for a bribe. 14 In general, Conceal the crime.7 It seems clear that these behaviors lie outside the scope of the therapist's mere failure to report the the therapeutic relationship. Could a Commission of a federal crime under the psychiatrist who hospitalizes a patient, Pan-ar-Neal test would not, in itself, ex­ however, knowing that the patient is ~~ the therapist to legal jeopardy.8-14 fleeing from the law after committing a I QIS would appear to be true regardless federal offense, be deemed to be "har­ of the crime involved, including threats boring" a criminal, and thus come ~o federal officials and even treason. within the ambit of the misprision stat­ Misprision of treason" is addressed by ute? Does the patient's need for hospi­ ~ separate statute, but the wording of the talization affect this determination? The ey section "conceals and .