The Shrink(ing) Privilege, Take 2: New York Times Article Reports That Exceptions To Military Psychotherapist-Patient Privilege Are Hindering Therapy.

My post is here on the NYT article discussing the military patient-psychotherapist privilege at court-martial and under the UCMJ.

Major Hasan’s war crimes trial requests, 17 November 2009.

The issue has gained new attention with the recent mass shootings at Fort Hood that killed 13 and wounded 43. In the weeks before the rampage, the accused gunman, Maj. Nidal M. Hassan, an Army psychiatrist, told colleagues and Army lawyers that he wanted to report soldiers who had admitted in counseling sessions that they witnessed or committed war crimes in Iraq or Afghanistan. War crimes can include acts like torture, murder, sexual assault and cruel treatment.

Reports an article in the New York Times.

It now seems that the New York Times is picking up on the issue of how lose and porous the military rules of patient-psychiatrist really can be. I’m one of those who often advise clients attending psych consults, medical appointments, chaplains offices, congressional correspondence to be careful what they say. We mostly know that Family Advocacy is an unofficial adjunct of the prosecution and you can bet any statements will be disclosed. But the issue raised by Major Hasan’s thought to report and the Times article a somewhat more subtle.

The NYT article points out the other side about the conflict a soldier (or any other service-member) faces when seeking help from military sources – a lack of trust. If there is no trust then the person cannot get the full support of the services sought.

Pfc. Jeffery Meier, who struggled with post-traumatic stress disorder and drug addiction after two deployments to Iraq, got an appointment in August to see a psychiatrist at Fort Carson, Colo. But when he arrived for his first session, he was asked to sign a waiver explaining that under certain circumstances, including if he admitted violating military laws, his conversations with his therapist might not be kept confidential. He refused to sign.

Private Meier, who is seeking a medical discharge from the Army, was given counseling anyway. But he says he never opened up to his therapist, fearing that actions taken in the heat of battle might be disclosed to prosecutors. “How can you go and talk about wartime problems when you feel that if you mention anything wrong, you’re going to be prosecuted?” he said in an interview. He is not alone in his wariness. Many soldiers, lawyers and mental health workers say that the rules governing confidentiality of psychotherapist-patient relations in the military are porous. The rules breed suspicion among troops toward therapists, those people say, reducing the effectiveness of treatment and complicating the Pentagon’s efforts to encourage personnel to seek care.

There is a need for a comprehensive review of how the military privilege rule operates legally and practically. As the NYT points out, the Mil. R. Evid. on the privilege is fairly young, but there is a wealth of experience in civilian court practice. An issue for the the DoD Joint Service Committee on Military Justice perhaps?

Fort Hood massacre suspect Maj. Nidal Malik Hasan sought to have some of his patients prosecuted for war crimes based on statements they made during psychiatric sessions with him, a captain who served on the base said Monday. (emphasis added) Other psychiatrists complained to superiors that Hasan’s actions violated doctor-patient confidentiality, Capt. Shannon Meehan told The Dallas Morning News.

Now here’s an odd comment.

Hasan may have been legally justified in reporting what patients disclosed, said Patrick McLain, a Dallas lawyer who specializes in military defense work and is not involved in the Hasan case. But it’s impossible to be sure without knowing exactly what they said, he added.

Military Rule of Evidence 513 is the rule of privilege for court-martial. Prior to court-martial psychiatrists would be bound by their state and government ethics rules on patient-psychiatrist privilege. Normally those rules prohibit release of information about past crimes. Yes, there is an issue about a requirement to disclose future crimes.

(a) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

There is also common-sense command imperative reason not to be disclosing what was said in a psychiatric confessional – trust. The military is having enough problems providing adequate, competent, timely mental health care to personnel. On top of that, those with mental health problems continually fight the stigma associated with having mental health problems. It wasn’t until recently that the rules were changed for security clearances allowing people with mental health problems like combat related PTSD to be still considered for security clearances. So I’m not sure the military would want to make a habit of allowing it’s mental health providers to disclose information.

Now there are eight exceptions to Mil. R. Evid. 513.

1. The patient is not dead so that wouldn’t apply.

2. The patient is not accused of spouse, child abuse or neglect. Although I could see a creative prosecutor arguing that if the “war crime” is against a child in Iraq, then this exception applies.

3. When federal, state, law or regulation require. The prosecution would want to be sure the regulatory exception doesn’t swallow the rule.

4. When the person believes the patient is a danger to self or others. But this would not apply to past crimes, unless clearly intertwined with exception 5. So for example the patient talks about how they did x, y, z, and how they will do it that way again first chance they get.

5. If the disclosure clearly contemplates as future crime.

6. When necessary to protect military property, personnel, security, or military mission.

7. When an accused first offers mental health evidence at trial.

8. When constitutionally required. This is a rule for the defense in cases in which the mental health of a witness is relevant to a case and production of records is necessary to ensure an accused’s constitutional rights.