Following on the heels of the U.S. Supreme Court's affirmation of a federal psychotherapist-patient confidentiality privilege, APA met with Pentagon officials to discuss the Association's concerns about confidentiality limits imposed on the medical records of military dependents.

The July 24 meeting, which was held at APA's request, focused on two areas. One was the consequences of a case in Alaska in which a rape victim's psychiatric records were allowed to be released during a judicial proceeding over her family's objections and despite protests from the Air Force psychiatrist from whom she sought treatment after the rape. The second topic involved broader issues concerning the need to develop standards that provide better protection for the medical records of military personnel and their dependents.

APA's stance on the need for the Department of Defense (DOD) to develop stricter standards for protecting the confidentiality of medical records was strengthened by the Supreme Court's June ruling in Jaffee v. Redmond that the protections afforded the content of psychotherapy in state court proceedings must be recognized in federal courts as well (Psychiatric News, July 5). The majority opinion emphasized that to be effective, "psychotherapy depends on an atmosphere of confidence and trust, and therefore, the mere disclosure of confidential information may impede development of the relationship necessary for successful treatment."

This concern about how inappropriate releases of sensitive medical information may adversely affect treatment or discourage ill individuals from even seeking treatment prompted APA to urge DOD officials to develop stronger safeguards for these data. APA representatives conveyed the Association's belief that avenues exist for improving these protections without compromising the right of parties in judicial proceedings to have access to all information relevant to their cases.

Representing APA in the meeting were Medical Director Melvin Sabshin, M.D.; Ethics Committee chair Richard Epstein, M.D.; Eugene Cassel and Cathy Brady, assistant directors in APA's Division of Government Relations; and APA counsel JoAnn Macbeth. DOD representatives included John Mazzuchi, Ph.D., deputy assistant secretary of defense for clincial issues; military psychiatrists John Mateczun, M.D., Nancy Bakalar, M.D., and Larry Grubb, M.D.; and other senior Pentagon health officials.

Among the issues the group discussed in addition to the need for confidentiality protections were procedural safeguards that if adopted would maximize patient confidentiality and minimize ethical conflicts experienced by psychiatrists who treat patients in the military health care system, and ways to protect military psychiatrists from being appointed as expert witnesses "in circumstancees in which they will be required to act contrary to interests of former or current patients," said Cassel.

After the meeting Sabshin told Psychiatric News that he was "pleased that senior Department of Defense personnel were understanding of APA's commitment to and concern with the protection of mental health records of military dependents." He noted that there was a consensus among those at the meeting "about the need for the development of reasonable standards to determine when such records may be subject to the military judicial system, and that APA should move forward to develop them."

Epstein, who along with Grace Young, M.D., chair of the Committee on Confidentiality, did much of the preparation work for the meeting, said "APA's arguments about the importance of confidentiality were received sympathetically" by DOD officials.

On August 19 Sabshin followed up the meeting with a letter to Colonel Thomas Becker, associate deputy general counsel for military justice and personnel policies, asking that DOD amend the Military Rules of Evidence "to create a privilege that would be consistent with" the Jaffee v. Redmond ruling that now mandates such a privilege in federal courts. He also recommended that APA and DOD representatives work together to reach agreement on specific language for the new rules.

Sabshin emphasized that military dependents, including crime victims, enjoy little or no privacy of their medical records in military court proceedings, which "creates a hazardous situation that requires remediation." The current code permits both prosecuting and defense attorneys access to these records, with none of the protections for sensitive content of psychotherapy or other psychiatric treatments that exist in other courts. Thus the primary consequence is "to interfere with the ability of military dependents to obtain needed mental health treatment," Sabshin said.

Epstein stressed that "APA is very committed to pursuing this issue, because until the Pentagon changes its rules, military dependents will not be able to receive adequate mental health care."

(Psychiatric News, September 6, 1996)