The Danger of Compromised Confidentiality in Military

Confidentiality is the cornerstone of effective mental health care. Few physicians and patients dispute this. Our patients' problems are very personal and private. Wherever we practice medicine in mental health clinics, our practices are filled with pain points in which protracted wars are waged against enormous personal problems.

In civil law, the rules of confidentiality in these wars of injury and mental anguish – while containing important limitations – are quite clear. They must be clear, otherwise few of our patients will trust us with a privileged place in their emotional well-being.

Nor should we, because the stakes are too high: invisible but potentially life-threatening wounds, unpleasant confrontations, embarrassing anxiety, damaged self-esteem and even future security. The privacy and security of our closets-the therapeutic bunkers in which our wounded patient-warriors hide from the invisible enemy-are the first great barrier between private suffering and potential public humiliation.

Consider the following examples from the patient's point of view:

• Imagine you work at the checkout counter of your local pharmacy. The shift manager around you keeps making increasingly inappropriate and sexually suggestive comments. You don't want to report the situation to the shift manager, even though it is causing you great distress. You just want to do your job. You have been sick several times in the last week to avoid the situation. You would like to talk to a therapist, but the company health insurance plan states that the only option is to go to a company therapist. You have seen the therapist and the group leader having lunch together at the company's headquarters.
• Imagine you are an employee of a local energy company. You have worked for the company for 15 years and have been a good employee. Your pension is in place and you expect to remain with the company until you retire in five years. You have a history of depression, which is well controlled with sertraline, but your depression has recently worsened. Lately you have had a few sleepless nights and have been sleeping most of the night. One day you arrive at work and your boss tells you that your psychiatrist has recommended your resignation and that the company has decided to fire you.
• Imagine you work as a firefighter in a big city. After 12 years of marriage, you are shocked when your husband tells you that he is having an extramarital affair. You are shocked and go to the emergency room for psychiatric help. You tell the on-call psychiatrist that you are having transient suicidal thoughts but have no experience, plans, or intentions of attempting suicide. The on-call psychiatrist will call the firehouse where you work and ask that suicide watch be arranged at your workplace.

For the men and women who wear our uniforms, these seemingly absurd numbers are more than just a fantasy. In the U.S. military, the threat and reality of similar situations are commonplace. Over the past decade, there has been increasing talk about the stigmatization of military mental health, the unwillingness of soldiers to seek help, and the macho culture of the military.

One not-so-unnoticed effect of this debate is that we expect the men and women who wear our uniforms to look inward and take responsibility. If they can overcome their fear of combat, isn't it time they overcome their fear of mental health care?

Clearly, stigma exists in the military, as it does throughout American society. However, it is clear that the problem is fundamentally different in the military. The problem in the military is that it is unable to establish appropriate boundaries between the workplace and the therapist's office.

The situation-and the relevant chapter and verse of military regulations-are discussed in detail in an article titled “Lives of Quiet Desperation: The Conflict Between Military Necessity and Confidentiality,” written by Army Maj. Jennifer A. Neuhauser in the Creighton Law Review (PDF). Neuhauser presents a fair, thoughtful, compelling, and objective argument in favor of confidentiality.

I will only quote a few of Neuhauser's key points here and urge readers to read the article for themselves. He begins with an overview of the Health Insurance Portability and Accountability Act (HIPAA), and then goes on to discuss the relevant DoD regulation, DoD6925.18-4 (PDF), which, according to Neuhauser (PDF), “generally prohibits the disclosure or use of individuals' identifiable health information except for “specifically authorized purposes.”

He then cites DoD6025.18-R (PDF) to explain how, although the rule ostensibly protects soldiers' privacy, in practice it undermines that protection by allowing disclosure of PHI (protected health information) “…for activities deemed necessary by the appropriate military commanders to ensure the success of the military mission” without the soldier's consent.

Neuhauser writes: “These activities include determining fitness for duty, fitness for duty, and fitness for a particular duty, assignment, order, or authorization, as well as ‘any other activity necessary for the proper performance of the military mission.'”

Neuhauser, examining the Army's version of the regulation, Army Regulation 40-66 (PDF), notes that “exceptions have swallowed the rule” when commanders request soldiers' PHI “to ensure the proper execution of their mission, whether it is demolition or kicking in doors.” Neuhauser quotes the executive director of the National Institute of Military Justice as saying that the exceptions are so broad that “you could drive a truck through them.”

Neuhauser points out that while there are penalties for non-compliance with these rules, they are not enforceable in practice. He explains, “Problems can arise when a commander or operations officer pressures a brigade medic to review psychotherapy notes, for example, if the commander wants to know if a soldier is making excuses for a deployment or mission.

While most medical professionals are undoubtedly ethical, the potential for abuse exists.” To fully understand the complexity of the situation he describes, the reader must be aware that both the brigade surgeon and the soldier whose medical records he is requesting may be working for a commander who is applying pressure.

Perhaps the greatest challenge for psychiatrists and other mental health professionals is Neuhauser's observation that, although current regulations severely restrict the confidentiality of mental health information-far exceeding the normal limits of confidentiality in the civilian setting-military chaplains are, in principle, strictly confidential when talking to recruits, even when offering pastoral counseling.

Attorney-client privilege in the military is very much in line with civilian practice. This would be easy to accept if it were constructive. However, the weakening of confidentiality restrictions not only makes it more difficult for soldiers to access the mental health help they need, but there is also no logical or convincing evidence that these restrictions improve military readiness, discipline, or performance.

Neuhauser argues convincingly that easy access to mental health information by commanders is counterproductive in several ways. It hinders the military's ability to provide effective mental health services because soldiers rightly believe that seeking treatment could be detrimental to their careers.

It places the onus of determining the reliability of military personnel on mental health professionals, who only see military personnel for a few hours in an artificial office environment. It relieves military commanders of the institutionalized responsibility of knowing the status of soldiers who work for and with them, usually for several hours a day.

Moreover, it is ultimately unnecessary, as commanders can already refer some soldiers for a “commander-directed mental health assessment,” which provides written feedback to the commander about the soldier's mental health and credibility.

I have previously called for the introduction of civilian requirements for military mental health fraud. Mr. Neuhauser's article confirms my view in this regard. Given that the number of suicides in the military has reached unprecedented levels and, for the first time in modern U.S. history, has surpassed the number of suicides in the civilian sector, the empirical burden of proof to justify low levels of confidentiality in military mental health rests entirely on the military.

If the military is going to “eradicate” civilian mental health confidentiality standards-presumably in the name of good military order and high operational readiness-according to Neuhauser, it is time for research to determine the empirical effects of these policies.