Questions About the Parkland Shooting (1): Whatever Happened to Patient Confidentiality?

The Parkland shooting seems to be one of those “tipping point” events that–like Ferguson in the case of the abuse of police power–may well change the trajectory of the debate over guns and gun control in the United States. At this point, it seems premature to come to any definite conclusions, whether about the shooting, or about what follows from its having happened the way it did. What seems more obvious to me is that far too many questions are going unasked. Here’s the first of several posts devoted to questions provoked by the shooting and the response to it–this first one provoked by the ease with which journalists seem to have gotten their hands on psychiatric or quasi-psychiatric reports having to do with the shooter’s state of mental health.

A question for people in social work/law enforcement: is there a legal/ethically legitimate way of getting hold of an adult welfare report by some equivalent of a Department of Children and Families as described in the article linked to just above? Or is journalistic reporting on the Florida DCF report on Nikolas Cruz based on a confidentiality-violative leak? Here’s some typical reporting on the release of the report, which is described as “confidential” in the same breath as it’s described as a matter of public record.

I don’t know how things work in social work, but as far as I can see, it is a blatant violation of the American Counseling Association’s Code of Ethics, as well as the ethical guidelines of the American Psychological Association and American Psychiatric Association, to divulge the contents of a therapy/counseling/psychiatric session to a journalist for purposes of public disclosure–even if the client is a threat to self or others, and even ex post facto (whatever meaning “ex post facto” has in mental health contexts). It’s one thing to divulge the contents of such a report to a law enforcement agency upon legal demand by that agency, but another thing to surrender them to journalists, who can be presumed to paste them all over the Internet, as is being done with the DFC report. The first is obviously a requirement, both legal and ethical. The second, I would have thought, is just as obviously prohibited–on both legal and ethical grounds.  

If there is a violation here, as I suspect there is, it strikes me as an ethical (possibly legal) violation by a journalist to suborn or knowingly receive and make public a confidentiality-violating communication. Perhaps this insistence sounds old-fashioned in this post-Wikileaks age. If so, we’ve gotten too used to the idea that journalists are truth-seeking Supermen to whom ordinary ethical constraints are irrelevant: every confidentiality-violating leak seems to go rationalized by loose analogy with the Pentagon Papers, to handwaving gestures at “the public’s right to know,” or to some pseudo-Peircian quest to follow every inquiry where it leads, no matter whose rights you have to violate in the process.

But journalists–like cops–are people like you and me. Extraordinary circumstances aside, there’s no reason to believe that we need to invent a special set of rationalizations for them to justify their facilitating or encouraging violations of confidentiality in psychological or medical contexts. (Journalists, incidentally, are among the first to jump on cops’ violations of procedural norms–and the first to complain when cops arrest journalists for flouting the law while the journalists merely “do their jobs.”) Indeed, in the age of social media, there is no clear dividing line between “them” and “us” to draw in the first place: nowadays, anyone with Internet access can become a de facto “journalist,” and many of those who officially “are” journalists barely deserve the name. In any case, I’d argue that if it’s wrong to divulge the contents of a confidential report, it’s wrong to publicize those contents–whether you’re a “journalist” or just an unpaid busybody. Not that I’d trust a journalist’s account of such a report anyway.

I’m often amazed at the cavalier attitude nowadays displayed toward issues of confidentiality in mental health settings.* Those of us trained in (or being trained in) the mental health professions internalize the doctrine that confidentiality is a near-absolute in therapeutic settings–a sacred trust without which there would be no such thing as therapy or counseling at all. We’re held legally responsible for failing to uphold confidentiality, and are also legally obliged to know the precise conditions under which confidentiality can and should be ignored in favor of other considerations.

Meanwhile, we inhabit a culture that lectures us incessantly on the need for a “stigma-free environment,” while crapping all over the basics of the mental health enterprise itself. Confidentiality is more obviously in need of protection than freedom from stigma: as ought to be obvious, there’s no need to worry about stigma if confidentiality is rigorously protected; generally speaking, stigma only becomes an issue when it isn’t.**

And while confidentiality has broad scope, freedom from stigma does not: whereas all patients are owed confidentiality regardless of diagnosis, there is no demonstrable reason why those with, say, Cluster B Personality Disorders (antisocial, borderline, histrionic, narcissistic) are so a priori lacking in any capacity for moral responsibility as to be excused from any and all adverse moral judgments that might be made of them (“stigma”). After all, few people are reluctant to stigmatize Nikolas Cruz, or assume a priori that he’s not at all responsible for the events at Parkland. The same, I suspect, might be said of those who insist that Donald Trump has a mental disorder. There is no reason to think that Trump’s pathological lying is the result of a brain disorder. If he has a mental disorder (an issue on which I remain agnostic), his free choices may well be an important part of the etiology that explains it, in which case a “stigma-free environment” is the last thing any of us need in dealing with him. What is far more obvious is that therapy sessions with personality disordered clients be kept confidential than that the clients themselves be immunized from any and all forms of “stigma.”

There’s been a lot of loose talk, made without real evidence, of a “failure of the system.” It’s not clear to me that most of these so-called failures–by the police, by the FBI, by the mental health community, by the school, by foster parents–really amount to failures, or can at this point be known to. That said, violations of confidentiality, even of that of a mass murderer, are a much more obvious “failure of the system,” than, say, whether some deputy law enforcement officer should or should not have rushed into the midst of the shooting to save those being shot at, or how the FBI should have handled the anonymous tips that were coming in to its offices. But failures regarding confidentiality have mostly gone undiscussed, partly because discussing them would require those engaged in the failures to come clean about their habit of doing so, something that might knock them down a few pegs from the Olympian heights they profess to occupy.

I’m open to the possibility that I’m missing something here–maybe adult welfare reports are available through public records request in Florida–but absent some special explanation, public blathering about a quasi-psychiatric investigation into the quasi-medical history of a specific patient seems prima facie problematic to me. And if journalists got the records through some legitimate public records request, it’d be nice for them to say so explicitly in their reporting (which they haven’t). I haven’t read a single article that explains how the DCF report legitimately found its way into journalistic hands. But its doing so is as much a part of the story as anything else is. It’s time to make it an explicit part.


*I recently completed an online suicide training program, made compulsory by my university and sponsored/funded by the Missouri Foundation for Health, called “Ask. Listen Refer.” The training did not so much as mention “confidentiality.” Indeed, in an astonishing violation of just about every canon of confidentiality in the mental health professions, the training material insists that suicides, attempted and otherwise, are “newsworthy” events that demand public comment by members of the university. The authors of the training material don’t bother to specify who it is that’s supposed to be making such comments, ignoring as irrelevant the fact that speaking for a university without authorization would not only violate university policy, but violate the AAUP’s guidelines on academic freedom. Evidently, such details take a back seat to the imperative to say something: “no comment,” we’re loftily told, is not a “productive” response to a suicide that finds its way into the news media. Naturally, most of the training material in question is protected by copyright and is therefore confidential (!), putting it beyond public scrutiny–scrutiny it desperately needs, and probably wouldn’t survive.

**It’s worth noting that one place where confidentiality is hard to observe is compliance with ADA 504 requests for accommodations in educational settings: it can be difficult to keep student requests for accommodation under ADA section 504 absolutely confidential. Most intelligent students would be able to infer that a student who regularly misses in-class tests to take them elsewhere under special conditions in a special testing center is doing so under 504 accommodations. Likewise, a student given, say, a special note-taker or other accommodation inside the classroom is going to stand out as receiving the accommodation.

Separate but related point: I once encountered a therapist who claimed that there was no confidentiality violation (under HIPAA) if people saw her clients walking from a waiting room down the hall and into her office, but that there was one if someone standing outside her door saw the same client in the office itself from the hall. (She shared office space with a lawyer and an architect.) The distinction struck me as casuistic in the worst sense, but such pseudo-rigoristic casuistry sits side-by-side in the profession with total indifference to issues of confidentiality as such.

14 thoughts on “Questions About the Parkland Shooting (1): Whatever Happened to Patient Confidentiality?

  1. Okay, you wrote a lot here and I don’t have time to read it all but I did note from one of the articles that a judge ruled that the records could be made public so it doesn’t seem to me that there was a leak, but that the court allowed the report to be made public. Now, why the court did that I don’t know (it seems to me that could be a problem down the road UNLESS his defense is going to be based upon his mental health and perhaps his attorneys didn’t object??!!). Just thinking out loud here.

    This is a quote from one of your links (https://www.turnto23.com/news/national/court-hearing-for-nikolas-cruz): “At a Monday afternoon hearing regarding records from the Florida Department of Children and Families, a judge ruled a three-page confidential investigative summary and 19 pages of background materials could be released regarding Nikolas Cruz.”

    In fact, if you’ll read through another link of yours, it is Cruz’ defense attorney who is quoted as making the case that Cruz was let down by the mental health system. I’m guessing that Cruz was probably convinced by his attorneys to agree to the release of these records. The attorney isn’t complaining so I can’t imagine any other scenario. In fact, this is from the article at this link (http://www.sun-sentinel.com/local/broward/parkland/florida-school-shooting/fl-school-shooting-nikolas-cruz-cutting-snapchat-20180216-story.html):

    “Cruz’s lawyers said the report is the clearest evidence yet that the system failed not only their client but also the murder victims, their families and the wider community. “All of this could have been prevented,’ said Melisa McNeill, the Broward assistant public defender who is leading the defense. “It makes me sick to my stomach because there are 17 people, including numerous children, who are dead and several others who are injured.” The attorneys said the Snapchat incident alerted at least four local agencies — DCF, the Broward Sheriff’s Office, the Broward school district and Henderson Behavioral Health, one of the largest mental health providers in the county — that Cruz was in crisis and posed a potential danger to himself and others. “Every single red flag was being thrown up by this kid, four days after his 18th birthday, and nothing was done to help him,” said Chief Assistant Public Defender Gordon Weekes. “This community has been devastated. The system didn’t only fail him, it failed the entire community.”

    They’re going to go for an insanity defense. That’s my guess. It’s a hard one to win but clearly they think that can make it.

    People always jump to the “he must be crazy” line of thinking because the behavior is so uncommon and disordered. I assume journalists do too. The lawyers must think they have a good case here otherwise they’d have fought the court release based upon their client’s confidentiality rights. I don’t know that they do have a good case for insanity. It’s a tough defense, and they have to prove that he didn’t know what he was doing was wrong. We’ll see. I’ve read about so many of these events, they’re all becoming a blur.

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    • My understanding is that the court order to release the records was a response to the fact that DCF (or someone within it) had already released parts of the report to the media. The court then decided, on the basis of defense requests, to release even more. But the first step was taken by DCF, and it was clearly taken because they felt that, given the unpopularity of the defendant, they could get away with it.

      http://www.miamiherald.com/news/local/community/broward/article200946129.html

      The key quote: “DCF attorney John Jackson successfully petitioned a court to order the release, acknowledging that other agencies have released information.” He means that the other agencies released the information prior to the court order. But on what legal basis did those other agencies release the information? (I’ve seen news reports that leave the source of the report ambiguous, implying that some source or sources could have been within DCF.)

      There is a real WTF quality to this story, one that I find pretty much unbelievable. There is no evidence that Cruz himself has waived his right to confidentiality. Has he been found or declared incompetent? Or does his defense team just want to act as though he is?

      Under Florida law, DCF cannot release the records without a court order, over concerns of patient privacy. In light of the charges of 17 counts of murder, Jackson called Cruz’s right to privacy “nearly none.” Judge Charles Greene, who presided over the hearing, agreed, saying through his actions Cruz waived his rights to privacy. After just over half an hour of statements, Green upheld the petition.

      “If there are shortcomings within the Department [of Children & Families], the public has a right to know.”

      Amazing. A defendant’s right to privacy vanishes because there are criminal charges against him? That’s a new one on me. Cruz “waived his rights to privacy” through his actions? Or is the claim that the public’s right to know supersedes his privacy rights?

      Here, by the way, is the DCF report itself. It basically says nothing of relevance: it’s written from the perspective of an investigation into abuse against Cruz. It’s a report on the risk level to Cruz from his mother, not the risk he presented to any third party.

      https://www.scribd.com/document/371912889/DCF-Report-on-Nikolas-Cruz#from_embed

      I had to laugh at one entry: “Lacks capacity to consent: No.”

      I feel sorry for the defense team that has the task of turning major depression + ADHD into a legal basis for an insanity plea for mass murder.

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      • I see. I agree then. There is a WTF quality to this (because he was his mother’s victim, they could release the information?). That could become problematic at trial I would think. If they’re not looking for an insanity plea, then the fact that the state released confidential information without consent will probably be addressed by defense counsel (unless they’re Cardassian defense attorneys; in that case, it’s their job to get him to confess!).

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        • That’s a Star Trek reference in case you didn’t know. The defense attorney who took on Kip Kinkel appeal told me that’s what Kinkel’s first defense attorneys were like — Cardassians (who assign the accused defense counsel whose job it is to obtain confessions; you can imagine that defense attorneys have often behaved much like Cardassians when making plea deals). In that sense, does this has an other-worldly taint to it or an old world taint? More of the same? Kinkel was, if you’ll recall, the 15-year-old school shooter who killed his parents and then four students at his high school in Springfield, Oregon. This was a year before the Columbine shootings.

          The guilty until proven innocent aspect of most news coverage is highly problematic as is the public’s tendency to think they know better than juries.

          Liked by 1 person

        • Apparently, Cruz has confessed. It’s mentioned in the legal documents on the DCF website. I’ve only briefly looked through them, haven’t really read them, but some of the argumentation in there is somewhat mind-blowing. Basically, the argument is: well, confidentiality or not, the confidential information found its way into the public domain, and since the public has a right to know, we may as well release as much of the rest as possible; plus, Cruz has confessed to a heinous crime, so he has no privacy interest worth taking seriously. (Incidentally, the documents name certain individuals that released confidential information, including the mayor of Broward County, Beam Furr.)

          The defense team seems more interested in showing that the state failed to restrain Cruz because it (supposedly) had knowledge of his dangerous mental state. Maybe that is true of law enforcement (maybe), but it takes a lot of imagination to read the DCF documentation that way. The DCF documents are not about the danger that Cruz posed, but the danger posed to Cruz by his mother. Cruz is referred to as “V,” throughout–i.e., as (potential) victim. The report is an attempt to investigate an allegation of abuse against Cruz. There’s really nothing there. The real question is how the news media can have generated so much interest in a report that says so little of relevance to the shooting. If every depressed, racist, self-cutting individual with ADHD is at-risk for being an active shooter, we’re on our way to living in “Minority Report.”

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          • True. When I studied mass killers, they were either depressed and sociopathic individuals (in other words, people in bad moods with bad tempers and no conscience) who had suffered a recent stressor, OR they were indeed quite ill and suffered from schizophrenia. Some were indeed insane, but many were simply troubled angry guys. Mental illness did not explain their behavior. Perhaps the defense is going to use this information as mitigation at sentencing. I’m not sure. It’s odd indeed.

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  2. Here is DCF’s statement, which contains PDF links to further documentation. They make clear that the records were released through a confidentiality-violating leak:

    Throughout the weekend, various news outlets obtained the records from a source unknown to DCF. As the documents were confidential by law until the court ruling today, DCF was previously unable to provide critical details that are important for the public’s understanding.

    http://www.myflfamilies.com/press-release/dcf-records-nikolas-cruz-was-receiving-mental-health-services-taking-medication-and

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    • And there’s only so much truth to the “keep guns out of their hands” reasoning because mass killings occur in China all the time without guns. You’d be surprised how many people someone can kill quickly with a hatchet or a machete. Recall the middle ages and the high homicide rate? No one had guns then either. It’s a bit more complicated than any of us know.

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  3. Pingback: Questions about the Parkland Shooting (2): The Premature Demonization of Scot Peterson | Policy of Truth

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  6. Of the four posts I wrote on the Parkland shooting, this one has the most straightforward answer. In retrospect, it occurs to me that the question that structured the original post involved a false dichotomy:

    [I]s there a legal/ethically legitimate way of getting hold of an adult welfare report by some equivalent of a Department of Children and Families as described in the article linked to just above? Or is journalistic reporting on the Florida DCF report on Nikolas Cruz based on a confidentiality-violative leak?

    Answer: both.

    Taken as an inclusive rather than exclusive disjunction, here is the answer to my original questions: there is a legally legitimate way of getting hold of adult welfare reports of the sort involved; at the same time, reporting on the Florida DCF report on Nikolas Cruz was based on a confidentiality-violative leak. In this case, the correct legal procedures were then enacted after the confidentiality-violative leak was taken as a fait accompli.

    The ethics (as opposed to the legalities) of releasing such a report are a complex matter worth some reflection. For whatever it’s worth, I can report that it’s not the kind of topic that comes up in an ordinary 500-level “professional issues and ethics” course for master’s level counselors.

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