Lives of Quiet Desperation: the Conflict Between Military Necessity and Confidentiality

• Publication year: 2022

44 Creighton L. Rev. 1003. LIVES OF QUIET DESPERATION: THE CONFLICT BETWEEN MILITARY NECESSITY AND CONFIDENTIALITY

LIVES OF QUIET DESPERATION: THE CONFLICT BETWEEN MILITARY NECESSITY AND CONFIDENTIALITY

Major Jennifer A. Neuhauser(fn*)

ABSTRACT

The recent year has seen the implementation of several measures designed to lessen the stigma of self-reporting for mental impairments, including proposed and implemented rules for post-traumatic stress disorder ("PTSD") treatment and the revision of security clearance questionnaires. A 2007 RAND Corporation study found that approximately 18.5% of servicemembers returning from Iraq or Afghanistan have either PTSD or depression. A small survey conducted by the American Psychiatric Association in 2008 found that three out of five servicemembers believe that seeking mental health services would have at least some impact on their career. Current Department of Defense ("DoD") policy under DoD 6025.18-R (Department of Defense Health Information Privacy Information) allows "covered entities" to disclose protected health information of "individuals who are Armed Services personnel for activities deemed necessary by appropriate military command authorities to assure the proper execution of the military mission."(fn1) The purposes for which this information may be disclosed include fitness for duty and "to carry out any activity necessary to the proper execution of the mission of the Armed Forces."(fn2)

This Article will argue that these provisions remain vague and overbroad, thereby permitting the perception (and in some cases, the reality) that Commanders may access mental health records at will, so long as there is some nexus to the "proper execution of the mission of the Armed Forces."(fn3) By suggesting that commanders may routinely gain access to information about a soldier's mental health, this policy and the existing authorities may perpetuate the stigma of seeking mental health services, especially for career soldiers.

This Article will examine the different actors in the military health system and their interests in either accessing or withholding protected health information. The military is unique in both mission and demographics. Specifically, this Article will address the commanders' interest in and regulatory authority for accessing a soldier's protected health information, and whether an alternative method for ensuring soldier readiness while shielding protected health information is feasible. This Article will also look at what protected health information soldiers are compelled to provide under the law (specifically for security clearances and deployability), and the dilemma one may face in choosing between his or her career and seeking treatment. Further, this Article will consider the dilemma of the providers whose roles as psychotherapists/physicians may be in conflict with their legal obligations to the military. Finally, this Article will also briefly look at civilian state licensing rules and laws (to which the psychotherapists may be subject) and how different they are from military regulations.

TABLE OF CONTENTS

1. INTRODUCTION................................... 1005

II. BACKGROUND .................................... 1008

III. THE LIMITS OF CONFIDENTIALITY.............. 1011

IV. THE ACTORS...................................... 1015

A. Soldiers........................................1016

B. COMMANDERS ....................................1021

C. Mental Health Practitioners .................1026

D. Cost Benefit Analysis .........................1031

v. recent department of defense initiatives.......................................1033

VI. proposed changes............................. 1036

VII. CONCLUSION ..................................... 1041

No matter what our achievements might be, we think well of ourselves only in rare moments. We need people to bear witness against our inner judge, who keeps book on our shortcomings and transgressions. We need people to convince us that we are not as bad as we think we are.(fn4)

I. INTRODUCTION

Clutching his rifle, an American soldier flattens himself against the ground, trying to avoid detection. He hears his pursuers barking orders to each other in German, dogs snarling, the rustling sound of boots trampling in long, tall grass. He can almost convince himself that it is 1942, not 2008, and that he is a hero and not a criminal. His body aches from lying motionless on the cold, damp ground. He steadies his breathing, uncertain of what to do next. He is tired of running. They are getting close now. Soon it will be over. It will all be over. It is almost a relief when one of the voices bellows in English: "Police! Do not move! Drop your weapon!"(fn5)

Things had gotten out of control so quickly. This was his third tour with the Army; he had ended his last enlistment with a general discharge for striking an officer. He promised himself that this time it would be different. But, as often happens, life gets in the way. In December he discovered his girlfriend was cheating on him with his roommate. He was homesick and alone in a foreign country at Christmastime. Trying to cope with the situation, he overdosed on pills and ended up in the Nevernklink, a German psychiatric hospital, for two weeks. It had been a tough year.

But now the rest of the unit was back from deployment. He could start over again with a new chain of command who knew nothing about his previous discharge or his suicide attempt. He was getting help. He was even interviewing with a new commander for a armorer job. He tried to make a fresh start, but seeing his ex-girlfriend holding hands with his roommate in the parking lot knocked something loose; he became unhinged all over again.(fn6)

That incident started a chain of events that ended in an open field outside Altershausen, Germany. With a German Special Weapons and Tactics ("SWAT") team and snarling dogs surrounding him, he rose, defeated from his prone position. Police snipers immediately trained their scopes on the crazed American who fled into the field after holding a young woman and her mother hostage. The soldier, Private ("PVT") Jeremiah Carmack, raised his rifle. Taking no chances, the Polizei fired. An hour later, doctors pronounced PVT Carmack dead.(fn7)

The story made headlines in Germany, particularly because the young woman, who was PVT Carmack's ex-girlfriend, and her mother were German. It seemed to encapsulate all of the bad things Germans believe about Americans-that they are violent, impulsive, and often overstay their welcome. When interviewed by Stars and Stripes, the battalion commander complained bitterly that PVT Carmack's "checkered past and his December suicide attempt should have been caught by a physician assistant ... especially since [he] was being considered for a job in the armory."(fn8) He laid the blame squarely at the feet of Army medicine, saying a combination of a shortage of physician assistants and a lack of access to medical files kept vital information from the command.(fn9) An investigation conducted in the wake of the tragedy found that a medic performed a medical records check at the battalion aid station as part of the screening process. However, the medic viewed only PVT Carmack's "hard copy" records because he did not have access to the electronic records, which required the authorization of a physician assistant.(fn10) The investigating officer found that "access to medical information [regarding PVT's Carmack's past suicide attempt] is clearly a hindrance to the chain of command attempting to do a background investigation on a soldier for a sensitive or trusted position in accessing critical data about that soldier's mental stability," even though PVT Carmack was never offered the armorer position.(fn11) The solution, the battalion commander said, is "the creation of a list of soldiers not authorized to draw weapons,"(fn12) specifically those undergoing mental health treatment. Private Carmack was a member of an infantry unit.

Tensions are inherent at the intersection of mental health treatment, military necessity, and confidentiality. Military leaders depend on their soldiers to be ready to deploy at a moment's notice.(fn13) As the United States enters its ninth year of war, repeated deployments have inevitably taken their toll on the military's psychological health. Anonymous surveys indicate that between twenty and fifty percent of active and reserve component soldiers redeploying from theater report various psychological symptoms, such as depression, relationship problems, and stress reactions. Yet less than forty percent of the affected population seeks mental health treatment.(fn14) Army leaders acknowledge that "military training, culture, institutional structures, and policies foster stigma and prevent individuals from seeking care because they fear that using services will limit their military-career prospects and causes them to be viewed as weak or unreliable."(fn15) At the same time, Army officials recognize privacy in mental health treatment "cannot be guaranteed because of the risk a troubled Soldier will jeopardize a mission."(fn16)

The purpose of this Article is to examine the interests and roles of the various actors in the military mental health system to include commanders, soldiers, and mental health providers. Part II of this Article will discuss the current mental health...