Patient confidentiality in the military

I have posted in connection with some comments about Major Hasan and his desire to have patients prosecuted at court-martial for war crimes and other offenses while deployed to Iraq.

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?