Misunderstanding Confidentiality and Privilege in
Civil Commitment and Risk Assessment

Regular readers and professionals who sometimes hear
me speak on suicide assessment, gathering collateral
history, and similar topics know that I am greatly
concerned about misplaced adherance to misunderstood
confidentiality rules and laws. I have often argued
(after disclaimers about not being a lawyer) with
other clinicians who believe that "confidentiality"
prevents them from gathering (or from appropriately
releasing) important, potentially lifesaving,
information from (to) other clinicians, hospitals,
and/or family members.

There are many different clinical and administrative
scenarios that involve assessing the risks associated
with potential danger to oneself or others. Many
psychiatrists, psychologists, and other clinical
evaluators erroneously believe that some rule or law
precludes their asking for, or reasonably sharing,
risk-related information that can be vital to adequate
diagnosis, treatment, protection from self-harm (such
as suicide), or reducing danger to others. Further,
some evaluators even fail to understand the very basic
importance of collateral information in such
situations, and make important admission, detention,
commitment, discharge, and level-of-care
recommendations or decisions without it.

In the wake of the recent Virginia Tech killings, the
Virginia Office of the Inspector General for Mental
Health, Mental Retardation, and Substance Abuse
Services (OIG) investigated that state's civil
commitment proceedings and published several
deficiencies and recommendations. I want to focus on
only one aspect of that investigation, the finding
that psychiatrists in civil commitment roles often
misunderstand the law concerning obtaining information
from outside sources.

Some 16 months before the shootings, the perpetrator,
Cho Seung-Hui, was evaluated for civil commitment
based on reports of psychiatric symptoms and apparent
dangerousness to himself or others. The OIG
investigation revealed that during Cho's initial
screening, a "certified prescreener" (LCSW) from the
local Community Services Board reviewed evidence of
"extremely odd, frightening and/or threatening
behavior" and interviewed another Virginia Tech
student and the detaining officer before recommending
involuntary hospitalization. An initial hospital
detention was accomplished, and Cho was evaluated by
an "authorized independent examiner" (a licensed
clinical psychologist) the next morning. The
psychologist stated that he interviewed Cho for 15
minutes and reviewed the prescreener's report and
medical records.

The examining psychologist apparently did not obtain
any additional collateral information, saying that he
rarely found it necessary to obtain collateral
information from pertinent people in such an
individual's life. Hospital staff reported to the OIG
that additional collateral information is not sought
before commitment hearings. Based on the brief
interview and review, with apparently no corroborating
information, the psychologist-examiner determined that
Cho did not require involuntary hospitalization. After
a hearing which did not include the independent
examiner, the prescreener, the detaining officer, or
any of the roommates/witnesses, Cho was released with
to "outpatient commitment" with no specific treatment
plan and no known follow-up to determine whether or
not he attended treatment.

During its investigation, the OIG conducted an
informal telephone survey of 20 attending
psychiatrists at facilities approved to admit detained
patients such as Cho. That survey found, in the words
of e-Developments in Mental Health Law, "a very
inconsistent understanding among them regarding their
ability to access collateral information regarding
their patient when the patient refuses to authorize
this access."

An excellent summary and discussion of the complete
report appears in the August issue of e-Developments
in Mental Health Law (vol. 26, issue e7, see link at
bottom of this page). The report itself (Investigation
of April 16, 2007 Critical Incident at Virginia Tech,
OIG Report #140-07 [2007]) may be obtained from the
Virginia Office of the Inspector General for Mental
Health, Mental Retardation and Substance Abuse
Services at
http://www.oig.virginia.gov/documents/VATechRpt-140.pdf
.



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