Most discussions regarding limits to confidentiality tend to lead to further questioning and investigation for answers to an ethical practice. For me, this topic seemed particularly more fraught with complications when applied to a military setting where there is competing regulations from the federal government, Department of Defense (DoD), APA Ethics Code, local military treatment facility, and state laws. I found it difficult to not only get clear feedback on the dos and don’ts, but also on where I could locate the relevant resources.
There is a recent and helpful article that alleviates some of the confusion called Limits to Confidentiality in U.S. Army Treatment Settings. (Click here for the abstract.) In the article, Hoyt (2013) delivers a review of the limits to confidentiality from the regulations under Federal Law and Department of Defense (DoD) for providers to understand these parameters specifically within the Army. The author identifies the eight categories of DoD guidelines that are relevant to behavioral health and offers a practical context to demonstrate how we can better inform service members. Here is a brief summary.
- Direct Access to Medical Records: When changing duty stations, behavioral health encounters from the past 90 days are reviewed and received by their next duty station without additional consent.
- Access by the Service Member: Service Members can receive a copy of their behavioral health record unless the information is sensitive, or have adverse effects, in which case a treatment summary or another provider can be identified as the recipient.
- Access for Health Oversight Activities: Inform the Service Member that access to their record may be obtained during compliance and oversight administrative procedures.
- Personnel Accountability: Service Members are responsible to notify command of duty status changes, such as to make their appointments. Command may be contacted for a missed appointment (i.e., consideration for risk factors or installation policy).
- Duty Limiting Profiles: A duty limiting profile will disclose information, justification, and recommendations for restricted duty.
- Command Notification: Providers communicate mental status and command involvement with the DA Form 3822, using the minimal amount of disclosing information for the purposes of the evaluation.
- Command-Directed Evaluations: Command consults with the behavioral health provider for an appropriate referral. The command must allow the Service Member to have two days to contact other support services. The provider informs command of the outcome and recommendations.
- Disability Compensation Programs: When involved in a disability evaluation, the commander will be informed of the duty limiting profile, and then informed of the disability processing progress, missed appointments, and determination of fitness for duty.
- Prevent Threats to Safety: Both providers and command have a responsibility to prevent harm to the Service Member or others. For an emergency command directed evaluation, command escorts the Service Member to service or consults with providers, as soon as possible. A provider recommends for hospitalization, enrollment in care, and the appropriate command involvement procedures and evaluations.
- Command Involvement Procedures: Unit level risk reducing activities may be necessary (e.g., increased supervision). Providers can remind commanders to take precaution in unnecessary disclosures when establishing actions for risk reduction.
- Preventing Harm to Others: Providers take actions or make recommendations to command to prevent harm to others while in garrison or deployed, including awareness to the rules of engagement.
4.Disclosures for Public Health Purposes
- Sexual Assault: Any provider aware of a sexual assault is mandated to refer the service member to the Sexual Assault Response Coordinator (SARC). The Service Member may make a restricted report, command does not begin a formal investigation, or an unrestricted report, command begins a formal investigation. Trends of sexual assault are reported to the U.S. Congress and publically available.
- Substance Abuse: Service Members who have not had any substance-related incidents can attend the Confidential Alcohol Treatment and Education Program (CATEP) and command is not notified. Providers of the Army Substance Abuse Program (ASAP) report to command the enrollment and progress of Service Members in treatment for alcohol and drug abuse/dependence. Providers are reminded to be aware of the limits of confidentiality on screening measures.
- Judicial and Administrative Proceedings: Disclosure of diagnosis or treatment is restricted unless there is another duty to report (i.e., imminent risk of harm to self or others).
- Administrative Separation: Reviews of records occur at different levels from local providers to the Office of the Surgeon General.
- Law Enforcement Purposes: Allow the Patient Administration Division to handle any requests for protected health information by law enforcement or investigative agency.
- Abuse and Neglect: Providers are mandated to report any suspected abuse or neglect of children or vulnerable adults and domestic violence to the Family Advocacy Program (FAP). Providers should be aware of state policy in contacting other agencies.
- Reporting War Crimes: Providers are encouraged to consider that although they are not mandated to report war crimes, there are ethical obligations to promote human rights and identify the imminent risk of harm to others. Providers can consult with Army regulations and standard operating procedures.
8.Specialized Government Functions
- Special Duty Status: A behavioral health clearance is required to determine the suitability or retention in any of the Army specialties (i.e., sniper, ranger, or Special Forces operator) and is reported to command.
- Access to Classified Information: The Army identifies specific conditions that may compromise classified information. Providers report these conditions to the Service Member’s commander.
The article also offers suggestions to enhance confidentiality through
a.) increasing provider knowledge about regulations and culture
b.) implementing methods for discussion and understanding by the Service Member
c.) working together with the Service Member when disclosing profiles, evaluations, or recommendations to command or other reviewers
d.) working together with command
e.) integrating treatments or services to increase confidentiality.
The article is a great reference offering the regulations and context as well as insight into the Army culture and the potential apprehension that service members may have regarding confidentiality when seeking treatment. Also, it is a proponent for a more concerted effort between the provider, Service Member, and command, to improve confidentiality with attention to Army regulations. Moreover, this seems to be a much needed guide that could help orient any new provider or trainee in the Army, civilian or uniformed. With that, I look forward to more discussions and development on Service Member confidentiality within the Army.
Laura Cho-Stutler, Psy.D., is a Deployment Behavioral Health Psychologist with CDP at Tripler Army Medical Center in Hawaii.
Hoyt, T. (2013). Limits to confidentiality in U.S. Army treatment settings. Military Psychology, 25, 46-56.