APA’s years of discussions with the Department of Defense over the failure of the military’s code of justice to include protection for the content of psychotherapy sessions resulted in a victory late last year when President Bill Clinton signed an executive order extending a psychotherapist-patient privilege to court-martial proceedings.

While civilians have enjoyed a confidentiality privilege in federal court cases since the U.S. Supreme Court’s 1996 ruling in Jaffee v. Redmond, military personnel had to face the possibility that the content of their psychotherapy sessions could be revealed in court if they were involved in court-martial proceedings.

Either the patient or the psychotherapist is entitled to claim the confidentiality privilege under the executive order—the therapist can do so on behalf of the patient—and it applies to all psychotherapist-patient communications made after November 1, 2000.

The definition of psychotherapist in the amended Military Code of Justice encompasses psychiatrists, clinical psychologists, clinical social workers, and assistants to a psychotherapist. These assistants are people whom the psychotherapist assigns to provide professional service to a patient.

The addition to the Uniformed Code of Military Justice, known as Rule 513, does not extend the protection to any aspects of military life other than courts-martial. In disciplinary or administrative proceedings that do not come to trial, such as those involving dismissal of service members because they are gay or lesbian, psychiatrists and mental health professionals may still be subject to orders to provide information on a soldier’s sexuality.

The military’s psychotherapist-patient privilege is, however, not as broad as the one that the Supreme Court upheld in Jaffee v. Redmond.

The privilege does not hold, for example, when the patient is dead, even if his or her family wants the confidentiality maintained. Military personnel also lose the privilege when any communication with their psychotherapist contains evidence of spouse or child abuse or when federal, state, or military law specifically exempts such abuse allegations from confidentiality protections.

Additional exclusions allowed under the new rule occur in cases in which a psychotherapist believes that a patient’s mental status makes him or her a danger to self or others, when the patient communicates intent to commit "fraud or crime," and when the information is "necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission."

The specific interpretation of the limits of these exclusions is left to the discretion of military judges who can thus choose to view them broadly or narrowly on a case-by-case basis.

David Benedek, M.D., president-elect of the Society of Uniformed Services Psychiatrists, an APA district branch, said that the executive order "is a positive step in affording patients further privacy protections." He indicated that without any experience to point to regarding how military judges will interpret the new rule, "only time will tell" if the privilege will encourage people to seek out mental health care who might have otherwise been reluctant to do so.

As for the numerous exclusions to the privilege rule, he pointed out that since the military has unique concerns about security, the exceptions are "understandable."

Glen Gabbard, M.D., vice chair of the APA Commission on Psychotherapy by Psychiatrists, is far less sanguine about the exclusions to psychotherapist-patient privilege. "The change is a giant step in the right direction," he told Psychiatric News, but the exceptions "undermine the intent of psychotherapist-patient privilege." The most troubling exclusion, Gabbard stated, "is that the therapist must break confidentiality if he or she hears anything from the patient that might compromise" the safety and security of the military’s personnel, property, or ability to accomplish its mission. "This wording gives wide discretion to therapists to exercise their own judgment on what must be kept confidential and what must be revealed. It basically removes the teeth from the privilege."

APA intensified its effort to convince the Department of Defense to remedy the lack of psychiatrist-patient confidentiality protections in 1996. Its increased urgency followed the case of Jay Weiss, M.D., a psychiatrist at Elmendorf Air Force Base in Alaska, who refused to capitulate when his superiors ordered him to turn over the psychiatric records of a rape victim he had treated. That victim, a relative of an Air Force officer, had charged that an enlisted man raped her, though during the man’s trial the victim never brought up the issue of her mental state, either before or after the crime. Thus, Weiss saw no valid grounds for handing over the records to the military court.

The victim’s mother got into the psychiatrist’s office and in front of Weiss tore up the records of her daughter’s treatment, after which he received an administrative sanction for not stopping the destruction of the records. After 30 years in the Air Force, he retired in protest in 1997.

Weiss’s case arose soon after the Jaffee decision, and the Air Force quickly issued an order to its judges emphasizing that the Supreme Court’s privilege ruling did not apply to military courts, which operate under their own code of justice.