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.