This is Bad
Today's in-box contained a letter titled "Message to Our Nation’s Health Care Providers" from the US Department of Health and Human Services.
Its release today suggests that it is part of the President's new gun policy proposals.
The letter says, in part,
[T]he Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule does not prevent your ability to disclose necessary information about a patient to law enforcement, family members of the patient, or other persons, when you believe the patient presents a serious danger to himself or other people.
It goes on to say that
The HIPAA Privacy Rule. . . . allows the provider, consistent with applicable law and standards of ethical conduct, to alert those persons whom the provider believes are reasonably able to prevent or lessen the threat.
This is bad.
Take a look at the letter and see what you think. When I read it, I see confusion.
The letter bounces around a lot, telling providers that the HIPAA Privacy Rule doesn't prevent them from betraying their clients' confidentiality, talking about their "professional ethical standards," "the laws applicable to their profession in the states where they practice," and ending with "providers play an important role in protecting the safety of their patients and the broader community."
This letter/policy will have two effects:
1. Clients will not trust their providers. But a client's relationship with her/his therapist must be based upon trust.
Some clients or potential clients will have thoughts of suicide, thoughts of murder, thoughts of murder-suicide, or other forbidden thoughts. It is important that they be able to verbalize these thoughts. Verbalizing, processing, and understanding these thoughts is important. Perhaps verbalization would prevent a client from acting on these thoughts.
But if clients with these thoughts value their possession of guns, if they hunt, if they shoot skeet, if they like to shoot targets on a range, if they are survivalists, or if they just don't want to be on a list, they will either stop seeing their counselors, hide their thoughts from their counselors, or refrain from seeking therapy altogether.
If they do seek therapy and their provider tells the authorities that they are dangerous, how, then, do they continue therapy with that provider? How, then, do they trust any counselor again? They are done with therapy. Maybe forever.
This is bad.
2. Providers will be confused. How do you tell your client or patient that everything s/he says is confidential except suicidal or homicidal thoughts? Oh, but only if s/he's serious. What? What if the entire reason the client is there is because s/he is suicidal? Or having murderous thoughts? How does one decide if someone who verbalizes such thoughts is likely to act on them? Is that even possible?
Ah, but then there is another shooting. It is revealed that the deceased shooter sought therapy. The deceased victim's family sues the therapist. It is a sensational trial. The therapist's notes are subpoenaed. and they show that the shooter discussed his thoughts about killing another person. The therapist is ordered to pay damages, and a career is ruined.
After this happens once or twice, providers will learn. They will understand that they must report anyone who discusses any thoughts of violence or risk their careers and livelihoods. No more professional discretion, just report it all.
This is bad.
Both of these situations will prevent people who need treatment from seeking it. These situations will further stigmatize those who seek treatment for a "mental" condition. They will further shame anyone who has taken psychotropic medications. They will remove confidentiality from the therapist's toolbox. And they may not even prevent gun violence at all.
I commend the President and Vice President on assembling a variety of recommendations to end gun violence. But this letter to providers is a mistake.
I stand by my original proposal1, that people should be added to the no-gun list only if they are admitted to a mental health facility as a danger to self or others. Any less-strict criteria will only lead to more gun violence, not less.
And this is bad.