Confidentiality: A Conundrum in Veterans Behavioral Health Care

By Schwoebel, Camille; Schlimbach, Roger | Developments in Mental Health Law, January 2013 | Go to article overview

Confidentiality: A Conundrum in Veterans Behavioral Health Care


Schwoebel, Camille, Schlimbach, Roger, Developments in Mental Health Law


Great strides have been made in the research, diagnosis and treatment of Post Traumatic Stress Disorder (PTSD) since the start of the wars in Iraq and Afghanistan and in the ensuing increase in this diagnosis among returning combat veterans. Yet, despite advancements in care, many veterans still do not seek treatment. While the reasons for this differ widely, from lack of transportation to the stoic nature of those who serve in the military, none is more troubling than concerns over confidentiality. The impact, real or perceived, that both diagnosis and reporting may have on a service member's career frequently results in the failure or hesitancy to seek mental health services.

Veterans seeking services are often concerned about whether information they disclose to a counselor will be kept confidential or released to their employer, particularly if the job they currently hold requires a security clearance. The concern for active duty service members and for those currently serving in the National Guard and Reserve components is even more pressing. Service members and veterans worry that by seeking counseling they will jeopardize their current and future military careers.

One example comes from a 28-year veteran of the United States Navy, with over a dozen deployments throughout his service, including multiple combat tours in Iraq. He held a Military Operational Specialty (MOS) as a weapons expert. He sought help after years of dealing with many of the symptoms of Post Traumatic Stress Disorder (PTSD). However, once diagnosed, he was banned from using weapons. Although he was one of the lucky ones, being able to train for another MOS and being able to stay in the Navy until retirement, the sailor describes his diagnosis as a "career ender."

As civilian mental health providers know, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) called for "the establishment of standards and requirements for transmitting certain health information to improve the efficiency and effectiveness of the health care system while protecting patient privacy." (l) This law, enacted in August 1996, has been a standard for healthcare providers around the country, restricting their ability to share information without the permission of their patients. Under the "Privacy Rule," (2) the regulation implementing the Act, an individual's past, present and future medical conditions are protected, as well as any individually identifiable personal information such as a Social Security Number. When sharing information between separate entities, such as employers, written consent must be obtained from the patient before any information may be disclosed. However, there are a number of exceptions to this rule, one of which is applied directly to military service members. This exception allows for, "disclosure for essential government functions" to "military command authorities" and applies to cases in which a command has concerns about a service member's fitness for duty. (3)

Department of Defense Regulation 6025.18-R, (4) "DOD Health Information Privacy Regulation," January 24, 2003, paragraph C7.11.1.1, states that a commander can access medical records and speak with a service member's physician for activities "deemed necessary to assure the proper execution of the military mission." In short, the service member's command can access protected health information to ensure that the military member is fit to carry out the necessary duties to fulfill the mission.

Simply stated, when a service member is determined to be "not fit for duty" either physically or mentally, actions are taken to remedy the issue and return him or her to duty. Depending on the cause, this may run the gamut from physical therapy, rest, surgery or counseling. If the issue cannot be remedied in a timely way, the service member may be scheduled for a "medical board" to evaluate whether he or she should be retained or discharged. …

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Confidentiality: A Conundrum in Veterans Behavioral Health Care
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