Asking Pointless, Prying Questions is Not Anybody’s ‘Right’

by Eileen | 1:33 am, January 17, 2013 | Comments Off

Barack Obama thinks your doctors and therapists should ask prying questions about whether or not you own guns, and then share that data with the federal government.  If there were any doubt as to how fully Washington misunderstands what doctors actually do, the White House directive announces that there is no conflict with Obamacare, as if that scotchs any conceivable problem a physician might have with becoming a state-sponsored spy.

Obviously, this is being billed as a sensible and prudent response to the actions of a few men who are literally several dozen standard deviation away from normal.  The relevant passage, first run over at The Weekly Standard, bears re-printing in its entirety:

PRESERVE THE RIGHTS OF HEALTH CARE PROVIDERS TO PROTECT THEIR PATIENTS AND COMMUNITIES FROM GUN VIOLENCE: We should never ask doctors and other health care providers to turn a blind eye to the risks posed by guns in the wrong hands.

 Clarify that no federal law prevents health care providers from warning law enforcement authorities about threats of violence: Doctors and other mental health professionals play an important role in protecting the safety of their patients and the broader community by reporting direct and credible threats of violence to the authorities. But there is public confusion about whether federal law prohibits such reports about threats of violence. The Department of Health and Human Services is issuing a letter to health care providers clarifying that no federal law prohibits these reports in any way.

 Protect the rights of health care providers to talk to their patients about gun safety: Doctors and other health care providers also need to be able to ask about firearms in their patients’ homes and safe storage of those firearms, especially if their patients show signs of certain mental illnesses or if they have a young child or mentally ill family member at home. Some have incorrectly claimed that language in the Affordable Care Act prohibits doctors from asking their patients about guns and gun safety. Medical groups also continue to fight against state laws attempting to ban doctors from asking these questions. The Administration will issue guidance clarifying that the Affordable Care Act does not prohibit or otherwise regulate communication between doctors and patients, including about firearms.

If nothing else, we know the White House is still working from a different dictionary then the rest of the planet.  Per this document, a physician’s job is to monitor gun ownership and keep the government apprised.  Patient privacy is a secondary concern to the newly invented “right of health care providers to talk to patients about gun safety”.  Parsed, this means the Obama Administration wants to make collecting and reporting sensitive data that is utterly superfluous to providing care into a matter of the care provider’s right, rather then an issue about the patient, his rights, and his legitimate expectation of privacy.

The other half of this ‘right’ is that patients may expect to lose their recourse when a care provider, to use a coarse but, here, appropriate word, snitches.  If it is the doctor’s right to ask about firearm ownership and disclose that to the state, then no patient can have any legal grievance process.  What Mr. Obama is suggesting is taking away a patient’s expectation of privacy and right of redress in this matter by creating a ‘right’ for doctors to pursue such information.  The man is no fan of privacy for citizens and is quite simply seeking the path of least resistance.  His backgrounder certainly addresses the Affordable Care Act, meant to be the Barack Obama legacy more than anything.  He neatly ignores the existence of other laws and decisions that speak to a patient’s privacy and a care provider’s limitations on discussing what her patient tells her.

Asserting that care providers have a right to intrude on something that’s got nothing to do with delivering healthcare is one alarming piece of this document; the other is in the insistence that such an action in no way clashes with established patient privacy.  The Administration claims there is no federal ban on a healthcare provider breaking confidentiality to inform the state when a patient is a threat.  Strictly speaking, that’s true.  We have both a doctor-patient and a therapist-patient privilege.  The former is not absolute, though most exceptions deal things like statutory rape and communicable diseases..  The latter is debatable.  Case law is split on whether or not alerting authorities and potential victims when a patient informs a therapist of intent to harm is a proper exception to privilege.  There is, to date, no federal precedent.  Ah, but talking about the decrees emanating from Washington calls for a certain tolerance to splitting hairs.  Saying there is no ban or regulation on something isn’t the same as saying it’s absolutely allowed, or could survive a legal challenge, or even should be allowed.  It simply means there is no regulation on it, one way or the other.

In the matter of exceptions to patient-therapist privilege, that’s because, for one thing, the circumstances under which a therapist can be allowed, let alone compelled, to discuss a patient’s state of mind and what went on in a session, is a very big deal.  We are also right to be concerned that allowing even the most narrowly defined exception to privilege could be rapidly exploited. Permitting an exception when a patient threatens harm requires defining what makes an actionable threat; the threshold most therapists feel comfortable with and the threshold the state would like are quite far apart.  In this respect, it’s not a matter of when a care provider will report confidential information to prevent imminent harm to a third party; doctors and therapists aren’t monsters and don’t need the government playing ‘Nanny’ in order to know when a patient is a threat.  It’s better understand as the state’s bid to gain legal access to sensitive data under the auspices of protecting society from maniacs.

There is a third problem in this statement from the White House.  Our debate to exceptions to privilege is about the extent to which doctors and therapists may disclose the things that patients told them voluntarily and spontaneously, and the things the provider had to ask to provide treatment.  By structure, mental health sessions are largely made up of the statements the patient voluntarily makes.  A great many sensitive things – sexual history or drug use, to name two – are legitimate areas for a physician to probe before making treatment decisions.  What we have in this bid to make doctors drill their patients about gun ownership is something outside the scope of either of those.  The proposal is that the care provider would solicit information with an anticipated end use – reporting to the state – rather then make choices about how to handle information the patient chose to disclose.  There is also the question of soliciting information that forms no part of providing care, the matter of abusing a relationship of trust to solicit sensitive data not in order to care for a patient but to serve the state’s appetite for useful information.

Below, at some length, I offer thoughts, first, on the public tolerance for subverting tragedy into support for bad policy.  Secondly, I predict the outcome of a real destruction of privacy for patients.  Then,, I briefly sketch the legal evolution of therapist-patient privilege and go into a bit more detail about exactly what it means when the Obama Administration says there is no federal barrier to what they are attempting.

The newest crop of alleged spree killers, Mssrs. Loughner, Holmes, and Lanza, are also all alleged barking moonbats.  (Or, in the last case, ‘were’)  Sure as the tides, when offbeat people do violent things, the media and politicians insist that those moonbats should have been in therapy or, if they already were, should have been reported.  We simply will not let go of the myth that mental health professionals should be able to identify each and every violent actor and stop him before he acts.  In the wake of tragedy, we retreat into the comforting delusion that tragedy might be forbidden.  Faced with carnage, we become foolishly utopian.  The tragedy incumbent in this is that the momentary ‘do something’ panic will lead to overreaction, bad legislation, either-or thinking, and generally playing into the hands of people who live to exploit misery.  Also known as politicians and the media.

We don’t apply this delusional incoherence to all crimes – just the ones that get a lot of press or where the motive isn’t one we get. While most of us aren’t going to gun down our cheating ex, we understand the urge.  However, almost none of us would think that, bored on a weekend night, we should ammo up and let loose at a movie theater.  It doesn’t make sense to us, therefore, it must be the sort of thing that mental health professionals know all about.  We don’t understand it and couldn’t have predicted it, but it makes us feel better to imagine someone could have.  From there, it’s short step to blaming therapists for not stopping spree killers.  For that to hold, we need to presume mental health practitioners must be able to pinpoint genuine threats and choose not to report them, which would make the membership rolls of the APA nearly as dangerous as a Maximum Security Prison or the U.S. Congress.

Having decided that we understand what therapists do and the people the come in contact with, it’s usually not long before we start demanding some sort of regime whereby privacy for people in therapy gets annihilated in the name of pursuing an impossible goal.  And we contradict ourselves, first deciding that therapists must be able to reliably identify patients who represent threats and then demanding that something as sensitive as session notes be opened to wide scrutiny because the therapists clearly aren’t recognizing the threats.  Really though, it’s got nothing to do with assessing threats and everything to do with satisfying our own primal need for a sense of security, a sense so strong that we obey it even when we are already secure enough and are actually serving a delusion, a sense so strong we violate other peoples’ security and privacy.

The truth is that the likelihood any one of us will die in a madman’s spree is remote.  We’re safer now than we’ve ever been.  We ignore the real threats to focus on remote, but exotic and well-publicized, ones.  We push for whatever scheme strikes us first, or is sold to us by someone with a agenda, or spouted by a pundit without the knowledge to speak authoritatively.  We don’t consider the trade-offs.  Without being consciously aware of it, our willingness to sacrifice privacy in the name of preventing a repeat of an event so rare that we need not worry exposes us to real threats – namely, a surveillance-mad state with the legal right to indulge in all manner of monitoring.  We tend to presume all that power to monitor and surveil won’t ever be used against us.  People calling for a rollback of privacy protections flatter themselves that they will never be the ones under surveillance, that they will never meet a powerful man’s definition of being ‘suspicious’.  It’s high narcissism, and we tend to fall under the thrall of such narcissism when we’re scared.  Blindly following emotive and panicky urges is easier then rationally assessing whether or not some lunatic really could have been stopped and how likely we are to see a recurrence.

Partly, that’s because we are tribal, in the worst sense of the concept.  We praise people who are ‘different’ but usually mean people who garb themselves in the uniform of a safe and well-established sub culture and then bray about how ‘different’ they are, like Hipsters, or Congressmen.  People who really are different terrify us, and we are appallingly bad at picking out which different people are likely to pull off a Columbine or a Sandy Hook.  We’ve turned simply preferring to be alone into a pathology and have come to treat the anxiety and sadness so many experience at one time as dread diseases.  We’ve also normalized a pretty sickening level of voyeurism and exhibitionism, which is probably part of why anyone comfortable with being alone scares us.  We don’t know how to pick out dangerous people before they act, but we like to think they’re people who aren’t like us. More than anything, this leads to punishing weirdos without gaining anything.

Mind, you, I am not supporting the asinine anti-bullying brigade.  With any policy proposal, it’s vital not just to figure out if it’s worth the trade-offs.  We also need to ask whether the supposed beneficiaries need, or want, what we’re proposing to give them.  People who don’t fit the mold do not want, or deserve, to be made into totems.  Asking the class loner to smile and receive the forced ‘kindness’ of popular kids only reinforces the fallacy that our value lays in being approved by the popular kids.  Does anyone ever ask the weirdos if they’re all that hungry for a place in the mainstream?  It’s just as wrong to treat outsiders like they must be forcibly brought into the fold as it is to presume they’re all budding mass murderers.  Leave the weirdos alone and trust the actual trained professionals when it comes to treating the problematically weird.

This isn’t just a moral screed whereby I insist that oddballs are often happier and better adjusted than we give them credit for and would likely prefer that you back off.  I am also saying that diagnosing people after they’ve left no doubt of their sickness is not any kind of proof that their actions were predictable.   And I am saying that people who are more than just ‘a little off’, people who could benefit from professional mental healthcare, are not served by decreasing the privacy they might expect in treatment.  Some people know they’re screwed up and seek help.  Loss of privacy would keep them out of treatment and likely worsen their root problem.  Being treated like a freak-show who must be reported to the government isn’t going to a damn thing to help a major depressive, and might make him substantially worse.  The truly pathological tend, by way of their pathology, to think they’re fine.  The narcissist doesn’t think, “Gee, I’m an arrogant prick.  I should change”.  He thinks everyone else is in the wrong for failing to adore him enough.  And so on.  The worst people among us don’t seek mental healthcare as it is.  By what illogical leap do we think that eroding privacy for patients will change that?

One of the single greatest problems in getting people who need help to seek and accept it is the stigma.  A second problem is the consideration, by a potential patient, of how much privacy he can expect.  Medical relationships only work if the patient feels safe in candidly discussing intimate issues.  In mental healthcare issues, that holds even more.  Reacting to violent acts by arguably, even definitely, mentally ill people with a wholesale destruction of patient privacy won’t work.  Knowing they can expect no privacy will mean even more people avoid seeking treatment they need or give incomplete, inaccurate information to care providers.  The state could demand that session notes from mental health therapy be available to courts on demand, but that very act will guarantee the files of psychologists and social workers be grow lean, quickly.  The certain outcome will be people avoiding treatment, both medical and therapeutic, that they need.  I would also predict a lot of therapists keeping minimal notes or even destroying existing notes, if such a law ever came to pass.

It’s like the Postal Service in its endless bid to tax emails.  The mere act of passing a certain law would destroy the supply the law wants to tap.  Of course, this all presumes that policymakers who want to answer high profile violence with the destruction of patient privacy are well-intentioned idiots.  One could argue they are power hungry bastards who really just want the power that comes with knowing sensitive information about others are are willing to get there any way they can.  For our purposes, it doesn’t matter.  The outcome is predictable and will create real harm without treating any existing problems.  We don’t need to care what the motives are.

So, where do we stand on protecting privacy for mental health patients and what should we be concerned about?

First, let’s look at the current law of the land when it comes to the Federal government using the trust people place in healthcare providers to get sensitive information that would not otherwise be disclosed.  Under something called the ‘Third Party Doctrine’, you are presumed to have waived any and all expectation of privacy in anything you share with anyone else.  It’s a stark understanding of how expectation of privacy works, one in which you either take it to the grave or have given tacit permission for the New York Times to print your ‘secrets’ on its front page.  Establishing certain privileges, between you and doctors, lawyers, spouse, etc. was supposedly the answer.  Third Party Doctrine is a terrible, dangerous, and foolish idea, but for now it is what we have to work with.

Having made privacy in legal matters all about privilege has led to lots of emphasis on privilege.  A special privilege between a mental health professional and her patient is a new idea on the American legal landscape.  The case widely seen as the first to recognize such a privilege, Binder v. Ruvell, was decided in 1952.  Binder set a precedent in Illinois, eventually followed by the other states, until there was some variant of therapist-patient privilege in every state.  A federal precedent was lacking.  And that’s where Jaffee comes in.  Jaffee v. Redmond  is the 1996 Supreme Court decision where, 7-2, the Court established psychotherapist-patient privilege.

To make a very simplified statement about what that means for the likes of us, a mental health provider may only break confidentiality to report a patient to the state if she believes that patient is a immediate threat to himself or others.  This is the ‘Dangerous Patient Exception’ and case law is split as to whether it really exists or if the Jaffee privilege is absolute.  Elsewhere, Jaffee has been held to supersede the 6th Amendment ‘right to confront’, to the point the even in-camera examination of mental health session notes is forbidden.  The Department of Health and Human Services has also ruled that any insurance policy where the policy holder could be required to turn over mental health records to the insurer is, by default, illegal.

No doubt, insurers would love carte blanche to peruse session notes and any fool is capable of abusing the 6th Amendment.  However, recent events have highlighted the Dangerous Patient Exception, itself closely aligned to the Duty to Warn, alternately known as the Tarasoff Warning, Tatiana Tarasoff being the young woman who might not have been fatally stabbed by a deranged stalker if someone hadn’t punted.  As it is, Prosenjit Podda carried out an attack on Tarasoff pretty much exactly as he had outlined to his therapist.

(Just for the sake of specificity, Podda’s therapist did report him to police and he was briefly held against his will; he was later released and the director of the health center where he received counseling ordered his session notes destroyed.  At no point did anyone ever inform Tarasoff there was a credible death threat against her.  It’s not so much that therapists never considered a duty to warn someone before Tarasoff as that there was no hard requirement to inform and protect the intended victim.  A therapist might inform the police or a supervisor and consider it dealt with.  Tarasoff demands follow through to ensure the potential victim has been alerted.  To this day, whether Tarasoff should be treated as a therapist’s duty or a victim’s right is an ongoing debate.)

A therapist treating someone who makes threats against a third party may fulfill her Tarasoff obligation by alerting the police or the potential victim, but that breach of confidentiality needs to be based on a hard threat against a specific target.  Therapists can’t break confidentiality because of a ‘feeling’ or an ‘assessment’.  “You know, Doc, I regularly fantasize about slowly throttling Sen. Smith, because he advocates overturning Jaffee” is a concrete threat.  However, if my therapist gets a general sense that I might enjoy cudgeling people who don’t respect privacy, that’s not a threat for the purposes of triggering her Duty to Warn.  Even though I really do think privacy-violators deserve prolonged  cudgeling.

In the case law where courts have considered if Duty to Warn creates an exception to Jaffee, the threats made by patients have been highly specific against known targets; Hayes talked about murdering his supervisor, Chase wanted to harm FBI agents if they executed a search warrant on his home, Glass felt President Clinton could stand to be assassinated, and Auster decided not to wait for his therapist to pass on his threats, directly threatening the man he thought was mismanaging his pension.  Even then, only Glass and Auster upheld Duty to Warn, or, put another way, held that the Jaffee privilege is not absolute.  Going back and forth over Tarasoff exceptions to Jaffee is still not the same thing as ruling that, a legitimate Tarasoff warning having been made, privilege no longer applies to session notes.  It’s a sort of ‘I already told you the guy wants you dead; you don’t need to read his file’ deal.  Simply put, Jaffee has proved resilient and is a thorn in the side of surveillance monkeys.

Some people would prefer a much lower standard to go prying into peoples’ mental health records.  If they can’t overturn Jaffee, they’ll get creative about finding other ways to get data.  Like trying to get trusted practitioners who aren’t bound by Jaffee to act as data collectors.  Pressuring care providers to ask all manner of questions about gun ownership violates the spirit of privilege while paying lip service to the letter of the law.  It’s an end run, and it’s the camel’s nose under the tent.  If Mr. Obama’s attempt succeeds, more will follow.  The concern isn’t that patients won’t simply refuse to answer such questions.  It’s that a therapist’s ‘right’ to know details about patients will become society’s ‘right’ and finally the state’s ‘right’…conferring obligations on care providers and patients alike to cough up personal information.

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