The November 5 Fort Hood shootings raise several serious legal questions, particularly concerning the bounds of psychotherapist-patient confidentiality. Recent news reports revealed that the alleged shooter, Army psychiatrist Nidal Malik Hassan, wanted to have several of his soldier patients prosecuted for war crimes based on information they revealed during therapy sessions with Hassan.
According to reports, Hassan had asked several colleagues if he had the legal authority to report the war crimes without breaching his duty of confidentiality. Hassan also reportedly spoke with military prosecutors about bringing charges against the patients he believed had committed war crimes. Hassan’s requests, however, were repeatedly ignored. Some commentators speculate that his anger and frustration from these denials may have served as an impetus for the shootings. The last denial of his requests to bring criminal charges against the patients came three days before the shootings.
Many of Hassan’s colleagues and those working in the mental health field have expressed outrage that he would share information a patient had revealed in confidence for the treatment of a mental condition. Psychiatrists and others in the medical profession take the Hippocratic Oath to protect patient confidences very seriously, and are loathe to think that anyone might reveal something shared in confidence.
Confidences are rarely absolute, though. If patient-soldiers did in fact reveal that they had committed war crimes, Hassan may have been correct in sharing the information. If instead, though, his patients revealed nothing more than the horrors of war, he committed a grave injustice against those who trusted him as a professional to help deal with wartime experiences in Iraq and Afghanistan.
Many people misunderstand the legal rules requiring disclosure in the mental health field. In part, this misunderstanding stems from the separate confidentiality standards within the mental health profession and the legal system.
In the legal system, the U.S. Supreme Court case of Jaffee v. Redmond established the federal psychotherapist-privilege. The Court ruled that generally a psychotherapist or licensed social worker cannot be compelled to disclose confidential communications. However, the Court specifically noted that there are situations where this privilege might give way to more compelling concerns.
By the time the federal courts recognized this privilege, all 50 states already had statutes recognizing the psychotherapist-patient privilege. However, many of these states explicitly delineate exceptions. The most common exceptions include:
* Public health reporting exception: for sexually transmitted diseases and other contagious diseases, rape
* Mandatory reporting exception: for child abuse, elderly abuse, domestic violence, gun shots and stabbings
* Crime-fraud exception: if the patient is in the progress or about to commit a crime or other fraud, the therapist has an affirmative duty to report it
* Immediate threat exception: if the patient presents an immediate threat of harm to him or herself or another, the therapist has an affirmative duty to report
In the military justice system, the psychotherapist-patient privilege was adopted a few years after the Jaffee opinion. The rule now is memorialized in Rule 513 of the Military Rules of Evidence (MRE) and reads in pertinent part:
“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.”
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
These exceptions clearly apply to the reporting of war crimes, which is required under the service regulations of the Army. Thus, if Hassan learned during therapy sessions that soldiers had committed actual war crimes, then he did have a duty to report this information to his superiors.
The Importance of Protecting the Psychotherapist Privilege
The situations leading Hassan to believe the soldiers had committed war crimes have not been publicized. Without this information, it is impossible to determine whether his decision to report the information was justified or a breach of his duty of confidentiality.
However, it is vital and necessary that communications between a soldier and his or her therapist are not revealed in cases of non-criminal acts. This includes instances when the solider may have been personally involved in or witnessed civilian deaths that were inadvertent, unintentional and an unfortunate consequence of war.
Allegations of war crimes are taken very seriously by the U.S. military. The charge should not be used casually or to describe anything other than the deliberate and willful killing, torture and inhumane treatment of civilians and other soldiers, as defined under Article 147 of the Fourth Geneva Convention.
The psychotherapist-patient privilege is based on the importance of creating an environment where patients feel secure enough to disclose information freely and without self-censorship. For soldiers returning from war and attempting to deal things they have seen and experienced, preserving the confidentiality of this environment is critical. Accordingly, this privilege should only be breached when the law or special circumstances dictate. Clearly though, the commission of war crimes necessitates such a breach and it is important that all military personnel on active duty, including mental health professionals, are trained in the law of war and understand the definition of war crimes.