Friday, November 23, 2007

Reprint: FBI & American Psychological Association Attack Patient Confidentiality

[The following was first posted on January 7, 2007 at the Daily Kos website. It is being reprinted here as of significant interest to readers of this blog. I have no reason to believe that anything important has changed since this article was originally written. One exception might be the peregrinations undertaken by the American Psychological Association on the question of interrogations, which can be followed in numerous other articles at this site. Another exception would be revelations that emerged during the year regarding psychologist participation in U.S. government torture, and this additional material is included in the following text in the form of an editorial emendation.]

I recently came across an FBI report on a conference jointly sponsored by the FBI and the American Psychological Association. Given the recent and ongoing controversies over the use of psychologists and other medical personnel in U.S. torture programs abroad, I thought a close examination of the matter of this conference could be interesting. -- What you will read may shock you (especially if you are interested in mental health practice). It will certainly enlighten you, and help fill in the gaps that exist in our understanding of U.S. interrogation techniques, the "war on terror", and the government campaign to curtail our liberties.

Countering Terrorism: Integration of Practice and Theory
An Invitational Conference

FBI Academy, Quantico, Virginia
February 28, 2002
Sponsored by: Behavioral Science Unit, FBI Academy Science Directorate,
American Psychological Association
University of Pennsylvania, School of Arts & Sciences
and the Solomon Asch Center for the Study of Ethnopolitical Conflict
Decade of Behavior Initiative

It was during a meeting of members of the FBI’s Behavioral Science Unit (BSU) and members of the American Psychological Association, two large and complex bureaucracies, when the idea of an invitational conference on countering terrorism was born. The excitement of bringing together highly qualified law enforcement officers with various terrorism experts and academics was palpable.

(All quotes from the report are linked here, and found on the FBI's own servers.)

Susan Brandon: Top Psychologist for the Bush Administration?

The FBI report begins with an introduction by a member of the FBI's Behavioral Science Unit (BSU) and two members of the American Psychological Association (APA). Of the latter, the first listed is Susan Brandon, Ph.D., "Senior Scientist". The second is Geoffrey K. Mumford, Ph.D., "Director of Science Policy" at APA.

Susan Brandon, it should be noted, is:

...the Behavioral & Social Science Principal at the Mitre Corporation [a company highly linked to U.S. Air Defense]. In the aftermath of September 11, 2001, Dr. Brandon served as APA's senior scientist, and later as Assistant Director of Social, Behavioral, and Educational Sciences for the White House Office of Science & Technology Policy.... In December 2005, she was awarded the American Psychological Association (APA) Presidential Citation in "recognition of her visionary efforts to promote the value of the psychological and behavioral sciences as they apply to our counter-terrorism, homeland security, and national security interests". [LINK]

Brandon went on to become an instrumental member of the Social, Behavioral and Economic Sciences (SBES) Subcommittee of the National Science and Technology Council's Committees on Science and Homeland and National Security. As Geoffrey Mumford wrote in an article for the APA in 2005, Brandon

... joined the SBES Subcommittee to guide the interagency initiative on behalf of President Bush's science adviser. At APA, Brandon had helped steer much of the association's scientific outreach relevant to counter-terrorism after 9/11.

Reflecting on her role and the ongoing work being conducted through NSTC, Brandon noted "the SBES Subcommittee is an opportunity for the social and behavioral sciences to have a voice and a presence at the table that is unique in recent Washington policy processes."

The result of Brandon's participation was a report, Combating Terrorism: Research Priorities in the Social, Behavioral and Economic Sciences. Much in this fairly innocuous and insubstantial report came from material discussed at the Quantico conference, which is the subject of this diary.

What was left out, as always, is what is most telling: the concrete policies and roles determined for psychologists in the U.S. Homeland Security apparatus, and the changes that will have to take place in American psychology for this to take place.

What emerges is a portrait of institutional American psychology -- and its top leadership -- eager to have front seats at the spoils table that is capturing the billions of dollars flowing into national security in the wake of 9/11. (One is reminded of the participation of former APA president and top U.S. psychologist, Martin Seligman, in discussions on psychological debility via learned helplessness at SERE [Survival, Evasion, Resistance, Escape], a military program implicated in a famous New Yorker expose in the development of torture techniques used by the U.S. in Iraq, Afghanistan, and Guantanamo.)

[Author's Note: Since this article was originally written, the development of torture techniques by psychologists working for SERE and the CIA was confirmed in a report by the Department of Defense's Office of the Inspector General (OIG). The story had earlier been pieced together in large part by journalists Jane Mayer and Michael Otterman. Their work was put into context of the OIG report by psychologist-activst Stephen Soldz in a terrific article last May.]

The Quantico Conference "Scenarios"

On February 28, 2002, more than 70 academic scholars and researchers, and personnel from justice, intelligence and law enforcement agencies, met at the FBI Academy in Quantico, Virginia....

The participants, roughly half academic scholars and researchers and half law enforcement personnel, dispersed into seven small groups to discuss scenarios that had been developed before the conference by the FBI. These scenarios described some of the current problems that the FBI, other law enforcement agencies and intelligence agencies are facing as they try to discover cadres of terrorists or those who harbor them, as well as deter support for terrorism by individuals, designated groups, and communities.

What kind of scenarios were discussed?

Scenario 1: A trustworthy local businessman reports suspicious activity by an apparently Middle Eastern neighbor....

Problem: This scenario was viewed as quite typical of the many that have come through local police and FBI offices since 9/11. The problem is how to develop an effective triage system...

Strategies: Make use of data gathering/vetting systems already in use in other situations, such as in the medical and legal professions.

In other words, here the FBI is describing the need to develop better Information Evaluation Systems.

Other scenarios posit other intelligence conundrums and proposes strategies to address the problems involved (on community relations, interrogation, data mining, etc.).

Confidentiality, Ethics Codes, and the Need for Government Informers

Of interest are those scenarios that touch on issues of how mental health professionals conduct their business, especially when it comes to issues of confidentiality.

Scenario 2a: ....A woman contacts her psychologist from whom she has been receiving therapy for the past year for bouts with depression. She reports that she has just learned that a friend of her 19-year-old son appears to be recruiting her son for a martyrdom mission. This friend has voiced some fundamental Islamic beliefs that are very anti-American. The woman has overheard worrisome conversations between her son and his friend but had tried to discount their significance until her son revealed today that he was asked to become a Martyr for an unspecified attack against the United States. He is very concerned that his friend is involved in something that may be planned for the near future. They are afraid to report this to the police because her son has a juvenile record and he is somewhat anti-American himself. They are naturalized citizens of the United States after having moved here from Iran many years ago.

The joint FBI/APA report purports that this situation described in this scenario "is not covered explicitly by the American Psychological Association's (APA's) Ethical Principles of Psychologists and Code of Conduct." What does that code say?

5.05 Disclosures. (a) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose, such as (1) to provide needed professional services to the patient or the individual or organizational client, (2) to obtain appropriate professional consultations, (3) to protect the patient or client or others from harm, or (4) to obtain payment for services, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose.

So, what is not clear here? There are no individuals here who are identified as being harmed. But, if the patient or her son are concerned about future developments, they can always go on their own to the police or FBI. Scenarios such as these are routinely discussed in ethics courses. Most state laws mandate a disclosure under Tarasoff rules, which state that "a psychotherapist has a duty to protect or warn a third party only if the therapist actually believed or predicted that the patient posed a serious risk of inflicting serious bodily injury upon a reasonably identifiable victim".

Quantico and the Recent Judicial Attacks on Confidentiality

In a recent development, in 2004 the California Appeals Court, in Ewing v Goldstein, expanded the Tarasoff rules in a way that may affect the discussion here. In this decision, the Appeals Court upheld a case, wherein "The court saw no difference between threats conveyed directly by the patient and those related by an immediate family member of the patient."

But, in all the years before this decision, the psychologist had no obligation to report the client's son's friend to anybody. Indeed, it would have been unethical, if not illegal, to do so! Robert Kinscherff, a forensic psychologist on the faculty of Harvard Medical School wrote to Susan Brandon:

The law that permits or requires a psychologist to break confidentiality in order to protect third parties from potential violence is the closest body of law to the scenario. However, this law contemplates that it is the client/patient who poses the serious threat of harm to a third party; it does not contemplate violation of the confidentiality of the client/patient if the client/patient is not the source of the risk of harm.
There is no specific mention of national-security related issues in the Code, and I am unaware of any APA policy document or guidelines document that refers to national security issues as they might arise in the practice of psychology.
The Code as currently worded would actually permit breaking of confidentiality despite the patient's/client's wishes in the "national security risk from a third party" scenario BUT ONLY IF there were applicable state or federal law that MANDATED the breaking of confidentiality or PERMITTED the breaking of confidentiality in order to protect the client/patient or others (see, for example, 5.05(3) which permits disclosure to protect others if mandated or permitted by law).

Gee, too bad there is no such law.... Oops -- with the recent ruling, Ewing v Goldstein, now there is! As the Church Lady used to say, Isn't that precious?

But, seriously, is there any connection between the FBI/APA discussion in 2002 and the decisions made narrowing confidentiality laws for psychotherapists two years later? I don't know. But in the Quantico conference document, the FBI explicitly lays out its strategies on this:

Seek guidance from the American Psychological Association and state psychological associations to consider:

􀂃 Including statements regarding information related to national security in its code of ethics;

􀂃 Broadening training programs to include instruction on how to deal with such situations, and

􀂃 Teaching clinicians and clinical students how to become familiar with various law enforcement agencies and rules, and how to deal with third parties such as probation officers.

APA: Agents for the Government?
To make matters even more clear, the FBI tells the APA what it should be doing. And not only the APA, but teachers, the clergy, and anyone else who might be a source of solace, confession, and counseling in this country, making the latter into spies for the "war on terror":
There is a need for the American Psychological Association and state psychological associations to develop an ethical code for practitioners for instances where a client may have information relevant to terrorism (similar to other mandates that already exist, such as those for instances of abuse of children and the elderly and a client’s intention to harm himself or another person). Such instances are peculiar because they involve third-party harm. Psychologists need to be trained for what behaviors to look for, and how to report information to law enforcement while protecting the client and their family and community. This may include some kinds of cross-cultural training. The APA may have to work with legislatures and licensing boards regarding some of these issues. Similar training and issues of confidentiality need to be considered for the training of clergy, teachers, and physicians.
Even more amazing, given the joint FBI/APA nature of the report, is the FBI's "suggestion" to the APA:
It was suggested that the APA might develop guidelines for such reporting, and offer these to other agencies (school systems, social services), where appropriate.

HIPAA and National Security Disclosures
Then, a year or so after Quantico, the federal government implemented its new rules on privacy and medical information. The new privacy rule of the Health Insurance and Portability and Accountability Act of 1996 (HIPAA), now effective law since April 2003, states:

Patients have the right to receive an accounting of disclosures of protected health information made by their providers in the six years prior to the date on which the accounting is requested, except for disclosures....

4. for national security or intelligence purposes

5. to correctional institutions or law inforcement officers

[emphasis in original]

I don't know when this language was put in, but it correlates perfectly with the intent of the authors of the Quantico document. In any case, the developments regarding patient confidentiality have eroded the latter significantly in the past ten years, and the leadership of the American Psychological Association, while giving lip service to protecting confidentiality, has been quick to chuck its scruples when anything regarding national security -- or big bucks to get in on the hogfeed that is national science funding -- is at stake.

My Main Point

When the APA published its own article on the conference in November 2003, it never mentioned the changes in confidentiality laws and ethics codes proposed by the FBI, neither opposing or supporting them. You would never know from reading the APA's account that such tremendous changes in standard ethical practice were being proposed, or that the APA was to take the lead in making these changes throughout the larger medical and social services field.

The silence of the APA on this issue is deafening. The leaders of the APA have fudged the question of use of psychologists in national security interrogations that hold "enemy combatants", and where torture has taken place. The leaders of the APA would allow use of psychologists in Army interrogations where use of isolation, sleep deprivation, and inducement of fear and debility take place (see my earlier article on the "new" Army field interrogation manual). The leaders of the APA would like to be seen as enthusiastic cheerleaders of the neocon war on terror, as handmaidens to the organization of state security, in the name of providing "knowledge". In the meantime, they would turn every psychologist, psychiatrist, doctor, counselor, clergyman and teacher into government informants and spies.

I invite members of the APA, especially from its hierarchy, to respond to this diary/article.

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