15  Ethical and Medico-Legal Issues

There are several unique ethical and legal considerations when treating military clientele as compared to the civilian sector and several important issues specific to EMDR. We will review both aspects along with suggestions how to broach these topics with military populations.

Applicability: General Considerations

The degree to which this information may pertain directly to the therapist is contingent upon the therapist’s contractual nature or legally binding relationship with the Department of Defense (DoD). For military mental health practitioners in the Air Force, Army, and Navy, it all applies; for DoD civilians, most of it will apply; and, for civilian therapists not affiliated with the military, little to none may apply—however with one exception. Issues around ethical and legal issues in the military will probably be meaningful to all military members who happen to be mental health clients.

Confidentiality of Mental Health Services for Military Personnel

The Fifth and Fourteenth Amendments to the U. S. Constitution established the fundamental right to privacy, by protecting American citizens against unwarranted invasions of their privacy by federal or state agencies. Individuals of legal age are endowed with the legal right to their privacy and are the holders of the legal privilege as to what private information to share or not. The notion of doctor-patient confidentiality is rooted in ethics dating back to the Roman Hippocratic Oath, to which physicians swore allegiance. That notion became incorporated into English Common Law, eventually being adopted by state laws. It is different than the legal concept of a doctor-patient privilege. Legal privilege involves the right to withhold evidence from discovery and/or the right to refuse disclosing private information gained within the context of a special relationship. Special relationships include those between husbands and wives, doctors and patients, attorneys and clients, and clergy and confiders. Mental health practitioners are beholden to comply with pertinent state and federal laws governing the practice and conduct for their profession as well as adhere to the ethical standards of their particular discipline. Military and other employees of the Department of Defense fall under federal and military legal jurisdiction. Mental health practitioners in the government are licensed by the states but must adhere to federal law first.

•  The privilege is subject to mandatory reporting duties under not only federal and state law but also service regulations:

○  For example, does the member have a disqualifying condition for submarine duty such as the presence of psychopathology including personality disorder, or the inability to function in crowded, confined quarters per the Manual of the Medical Department (U.S. Department of the Navy, 1996).

•  The privilege can be breached when it is necessary to ensure the safety and security of military personnel, dependents, property, classified information, or the accomplishment of a military mission:

○  Military personnel that present danger to self, others, or property

○  Commission of a crime in accordance with military law (UCMJ)

○  Fitness for duty determinations—a mental health condition that may impact:

•  Ability to deploy

•  Ability to remain or return to active duty

•  Ability to carry firearms or handle ordnance

•  Ability to maintain top-secret clearance

•  Ability to serve in operational or remote billets

•  Ability to perform all assigned duties without restriction

•  Ability to perform without jeopardizing the mission

•  Ability to be assigned special duty (e.g., recruiting, drill instructor).

Multiple Relationships

For military mental health practitioners, there are multiple “clients” to whom they have a duty to protect their “interests” and “well-being”: (a) the military client, (b) the military client’s command readiness, and (c) the overall military mission. It seems complicated; most readers not contractually obligated in the military are probably thinking they are glad not to worry about all of this—well, sort of.

ISSUES OF CONFIDENTIALITY FOR MILITARY PERSONNEL

As indicated above, the military client–psychotherapist privilege grants and even requires that the therapist disclose considerably more confidential information without client consent than in the civilian sector—and the main reason has to do with national security and the military mission. For example, “fitness for duty” is the buzzword in the military referring to a service member’s physical and mental capacity to perform assigned duties to the fullest extent including deployment and going to war. If the clinician has identified or diagnosed a mental health condition (e.g., PTSD) that may be a risk to self, others, property, or the ability to fulfill any duty required, then the therapist is required to inform that individual’s Commanding Officer or Commander (Army). Theoretically, so the safety of the client and those around them, as well as the security of the mission, will not be jeopardized. We will get back to that later in terms of what information is actually disclosed. Mental health practitioners, however, are also bound to follow their state licensing laws and the ethical standards of their profession—especially pertaining to the welfare of the client. Boundaries for confidentiality are grounded from ethical principles weighing the rights and interests of the individual and the group. In the military, the complexities surrounding confidentiality are considerably more complicated by notions of “fitness for duty,” “mission impact,” and “need to know.” As mentioned in Chapter 5, the military member’s Commanding Officer/Commander has a “need-to-know” about any physical and mental health condition that may negatively impact the safety of the command personnel and/or the military unit/command’s ability to complete the military mission without hindrance. The military client’s Commanding Officer/Commander is responsible and held accountable for what happens to their personnel and the unit performance. They are the ones who write the letters informing families that their loved ones have died—all of which creates the “need-to-know”—extending the duty to warn and protect.

“Civilian” (Non-DoD) Therapists and Confidentiality

For non-DoD-affiliated therapists, the federal/military exceptions to psychotherapist privilege do not apply. Here is the rub: they do apply to the military client! Civilian (non-DoD) mental health records containing assessment, diagnosis, treatment, etc., are confidential and protected under state and federal (e.g., HIPAA) statues; however, the military client is obligated to notify their respective medical department or command if they have any condition that might be a disqualifying or effect their “military readiness.” Annually, if not more frequently, military clients have to update their medical readiness status, which usually involves having to sign a screening form whereby they must disclose experiencing certain symptoms or conditions—such as treatment for particular medical and neuropsychiatric conditions. If they report no such symptoms or conditions and if it is later discovered they were being deceptive, then a lot of things can happen—none of them positive. Falsification of an official record (e.g., medical screening forms) is a violation of military law (Uniformed Code of Military Justice; UCMJ). The therapist should assume that military clients are unaware of the ramifications if they attempt to conceal or falsify records rather than vice versa. By simply saying to clients, “If your job has any special requirements for you to notify medical or your command about a mental health diagnosis, it’s best to be truthful rather than to conceal something that might come back to bite you. If you’re unsure about what if anything you need to disclose about your receiving therapy, then please contact your JAG for a confidential consultation. I’m telling you all of this because I care what happens to you and don’t want you to be blindsided by anything. I myself will not disclose any information to your command, unless you tell me to or give me signed permission—or one of those other reasons we talked about earlier (e.g., danger to self, child or spouse abuse, etc.). So, what we’re talking about is what, if any, obligation you might have to give folks at medical a heads-up. Like for example, if you got orders to deploy tomorrow, it probably would not help you to then tell your command that you shouldn’t because of x, y, z … does that make sense?” If there is an accident or incident, and the customary investigation determines that the service member had a diagnosis that is incompatible with his or her assigned duties (e.g., piloting a jet), and the member had intentionally made false statements to conceal that fact—well, the reader can see where this is going.

Reviewing Limits of Confidentiality

This is why it’s critical that therapists be aware of and dutifully inform their military clients of the full, potential limits of confidentiality that pertain not only to the psychotherapist-client privilege, but also to potential obligations that the client may have for disclosure to their commands regarding special qualifications or military readiness issues. Therapists, even those on active-duty, are not expected to know every requirement for every military job; therefore the burden of notification typically falls upon the military client. Bear in mind that most military positions do not have stringent qualification and notification requirements, and that many times medical and command personnel in those specialized jobs want to work with the individually so they can receive proper treatment that won’t negatively impact their qualifications or careers. The military has invested a lot of resources in training service members for these specialized roles and most commands, and will, therefore, desperately try to avoid losing valuable personnel, and will go to great lengths to take actions to help their people and their military careers. However, if officials are not informed and issues are raised after the fact—then that ship has sailed.

The Therapist’s Duty and Confidentiality

The therapist’s duty is to properly advise clients that they need to consider if any information related to diagnosis may require them to notify medical or unit leaders. If they are uncertain about what, if any duty they have in terms of disclosure, they should be advised to contact the JAG for a confidential consultation. The main emphasis here is that it is always better to be as “above board” as possible, and avoid situations that can blindside or negatively impact the client’s welfare. Therapists need to cover all bases of the limits of confidentiality with their clients at the outset of the initial session and to try doing so in a matter of fact manner that doesn’t scare away clients. The more knowledgeable the therapist is, the better he or she will be at managing the client’s natural anxiety around the confidentiality issue.

Disclosures on a “Need-to-Know Basis”

If the therapist does have a “need-to-know” obligation, then they should inform the client about what kinds of information would be communicated to the command either verbally and/or via written assessment or treatment summary, as well as to whom this information would be given. Many military units have their own medical detachment, and this typically is the liaison point for the therapist and the client’s command and most, if not all issues. If unit medical is not available, the therapist should communicate to the client’s Commanding Officer/Commander, Executive Officer, or the senior enlisted leader. The purpose is to limit the amount of disclosure to only those with a need to know. If after hours, that may be the Command Duty Officer or whomever is designated as the senior person at the command. Therapists should generally not be communicating to the military client’s NCO or SNCO or Division Officer, in other words, the client’s immediate work center supervisors, unless no other command leaders are available. In many cases, the therapist will collaborate with the client as to who to notify at their command, unless it’s a command directed evaluation. Whenever possible, let the client read the draft of the written report and discuss the content or phrasing.

What information can be disclosed? If it’s a safety issue, then the client’s mental status in terms of dangerousness, gross incapacitation (e.g., psychotic reaction), recommendations, and, if applicable, their fitness for duty (e.g., should they be carrying a weapon, etc.). These determinations are almost always made by a military or civilian-DoD psychiatrist or psychologist, but if a non-DoD therapist has similar urgent concerns, then they should attempt to get the client to sign a release, or refer the client to the emergency room department (ERD) at the base clinic, or, in the case of an acute emergency, contact either the military ERD or 911. This is why it’s critical for therapists to work out the “what if” scenarios should a client enter into an acute crises. The therapist should inform the client that details about his or her past history, or contents of any discussion in the therapy office, or any other such issues, will not be released.

Malingering

Malingering is the intentional deception of impairment for the sake of personal gain (e.g., disability pension) or escape from undesired duty (e.g., avoiding deployment). It is a complicated clinical issue, and, in the military, it is a crime punishable under the Uniformed Code of Military Justice (UCMJ): Act 915. Art. 115. Malingering: Any person subject to this chapter who for the purpose of avoiding work, duty, or service

1.  Feigns illness, physical disablement, mental lapse, or derangement; or

2.  Intentionally inflicts self-injury shall be punished as a court-martial may direct.

Most therapists want to believe that their clients are being truthful and do not suspect deceitful intension—and, most of the time, they are correct. However, some clients are not seeking the truth, they are actively avoiding it. With military populations in particular, the therapist may encounter a moral dilemma never before imagined. This is more true for active-duty and DoD-civilian therapists, who are usually the ones who make the judgment call over whether to challenge a military client suspected or known to be malingering or to look the other way, especially if, by confrontation, the client might face jail time or possibly worse—being maimed or killed in war. Military clinical psychologists and psychiatrists are routinely put into these gut-wrenching decisions. Some take the simple, personally convenient route, by either always siding for or against the military client. The M-16 wielding “therapists” view their client as the military mission, and if they can go to the sandpit and kick down doors, then everyone else should too. Yes, they exist. Conversely, therapists who routinely shirk from any culpability may think they are saving their clients, but they are too self-focused to think of the other service members who must go in place of their clients (or of the families of those who serve). Yes, they exist too. And yes, somebody always must go. Those choosing the middle ground must wrestle with their conscience and the larger picture on a case-by-case basis and are more susceptible to compassion stress and fatigue—the price for caring.

Special Ethical and Legal Considerations with EMDR Use in the Military

As of this date, using EMDR is not in violation of the UCMJ, nor is it a Courts-Martial offense. The jury is still yet out in regards to researching EMDR in institutional military medicine.

Ethics and EMDR

Readers are probably familiar with the caution of using EMDR with eye witnesses or victims before or during legal testimony (see Shapiro, 2001). The same would apply for witness testimony in a military Courts Martial. The concern being that reprocessed memories may interfere with the effectiveness of client’s testimony. Therapists are advised to consult with the client and his or her attorney (if necessary).

Client Welfare and EMDR Treatment Planning

A much more common scenario is the clinical decision when or if to use EMDR and what protocol based upon the referral question, time and environmental constraints, client preference, and clinical judgment (see Chapter 5, this volume). Therapists’ clinical decision-making should be informed by their knowledge of the ethical principles and standards of their profession—at a minimum—“Do no harm.” This means that when the referral source and/or clients are requesting EMDR, and the therapist is concerned about the client’s suitability for EMDR, that whatever decision is make has the client’s best interest in mind. One hopes, of course, to collaborate with clients and to avoid an adversarial role, but, in the end, the therapist and client will be best served by doing what is right. Most ethical by-laws recommend consultation, and that would be most prudent to consider before making a final decision. It may be that the therapist may feel uneasy or not so confident about using EMDR with a certain client or set of problems, but otherwise the client would be considered stable and suitable. Therapists need to consider the treatment setting and timing issues seriously and will want to avoid reprocessing traumatic events from early in life within a few days of a major transition or event for the client. Conversely, therapists should not feel intimidated to not offer and use EMDR with military clients whenever appropriate. There might not be another opportunity to help this military client, so if no clear contra-indicators are present and the client is dutifully informed, “do no harm” can also be translated as “don’t withhold.”

Boundaries of Competence

Therapists need to practice within the scope of their competence and, again, be open to seeking professional consultation. Be sure to document when consultation occurs in the record. Some therapists might say to themselves that as they have never treated phantom-limb pain or medically unexplained conditions, they are not competent to do so with EMDR. As long as the therapist is clear in his mind and can articulate to the clients and others involved that EMDR is not a treatment for pain, (pseudo)seizures, TBI, major depression, substance abuse, etc., but is rather an evidence-based treatment for reprocessing experiential contributors that might be contributing to whatever symptoms are present, then the therapist should be on solid ground in justifying the use of EMDR beyond the PTSD diagnosis. Clients are less likely to bolt right away if their pain, fatigue, and associated problems are accepted (validated) as absolutely real, and all we can offer with EMDR is to help them with the frustrations and aggravations that have built up over the years and continue today, that we know (and they know) do contribute or make things worse. Where EMDR clinicians can run into turbulent waters is in not being precise in describing the AIP model and how it applies to these other conditions. Having familiarity with the literature will help assure there is some empirical support even in the form of published case studies in peer reviewed journals—something to counter an impression of loose cannons trying to cure leprosy with a wave of the hand.