Doctor-Patient Confidentiality in the Military

Privacy and confidentiality are not the same thing, of course, but an article by Patrick J Mclain,  a court martial lawyer and retired military law judge,  is worth noting on this blog.

Discussing some of the allegations made in the case of Army psychiatrist Nidal Malik Hassan (the alleged Fort Hood shooter),  Mclain notes that although people may think that Hassan was wrong in wanting to report some of his patients for war crimes,  there is a difference in exceptions to doctor-patient confidentiality between federal law and military justice. Although the military rule has  exceptions where there is a duty to breach confidentiality that parallel those in the civilian code, military code has some additional and specific exceptions.

Unlike the federal rules, which do not enumerate a list of exceptions to the psychotherapist-patient privilege, Rule 513 does provide explicit exceptions to the privilege. Some of these exceptions parallel the civilian rules, like reporting cases of spousal or child abuse or situations when the patient is a danger to him or herself or another person. However, some of the exceptions are unique.

Among other things:

  • The privilege ends at the patient’s death
  • The privilege is subject to mandatory reporting duties under not only federal and state law but also service regulations
  • The privilege can be breached when it is necessary to ensure the safety and security of military personnel, dependents, property, classified information or the accomplishment of a military mission

Read his full article on GOarticles.com.

The exceptions he notes raises some other questions in mind – including possible implications for Pfc Bradley Manning, the alleged source of over 250,000 cables provided to WikiLeaks.

Assuming, for the moment, that Manning was involved, it strikes me that even had he sought mental health assistance at any point when planning or having started to implement the copying of data, his communications would not have been protected by doctor-patient confidentiality.  Speaking hypothetically, any confused, distraught, or depressed soldier who seeks psychiatric assistance and reveals that he is thinking of blowing the whistle on what he has learned in the course of his work, would likely be reported.   Any soldier who is seriously depressed by their own actions in particular event or situation might be reported for war crimes depending on the nature of their revelation to the therapist.

Has the military shot itself in the foot by making it less likely for those who might be whistleblowers or conscientious protesters to seek help, assuming that protesters or those who have engaged in war crimes even know the military Rule 513 that limits their right to confidentiality?

Are we between the proverbial rock and a hard place?

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