Danger to Self or Others: Common Sense 101

[David Baxter PhD]

Common Sense 101
By Treatment Advocacy Center
April 17, 2008

On April 16, 2007, thirty-two people were killed at Virginia Tech by Seung-Hui Cho, a student whose mental illness and dangerous actions were known to university officials.

In the wake of this tragedy, the Department of Education has proposed new regulations to clarify when an educational institution may lawfully disclose a student?s medical information to parents or others. The new regulation reads in pertinent part:

An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties including parents of an eligible student, in connection with an emergency if knowledge of the information is necessary to protect the health and safety of the student or other individuals. Family Education Rights and Privacy, 73 Fed. Reg. 57 (March. 24, 2008) p. 15601.​

The new regulation does not change the conditions under which personal information may be disclosed. Rather, it merely aims to remove confusion about those conditions. Most notably, it seeks to help prevent tragedies such as occurred exactly a year ago at Virginia Tech.

In response to the Virginia Tech tragedy, the Secretary of Education investigated and found that many educators across the United States did not have a proper understanding of existing federal discloser requirements. These educators generally believed that the existing disclosure restrictions imposed significantly greater restrictions than they really did.

Besides clarifying the specific circumstance under which a disclosure to parents or others is lawfully permitted, the new regulation also provide safeguards for students to ensure that these disclosures are not made inappropriately. If a complaint is made about the particular circumstances surrounding the disclosure of a student?s personal information, the Department of Education is authorized to review these circumstances to verify that there was a rational basis for the institution?s action.

Some organizations have already expressed opposition to this proposed regulation. At least one organization has characterized this new regulation as heralding in a new hands-off approach that places at risk the confidentiality of student?s mental health information.

For some, it seems that the need to protect personal privacy always trumps the need to protect people form hurting themselves or others. However, it is high time that we apply common sense in balancing public safety and privacy concerns. The Department of Education should be commended for clarifying that medical information can be properly released in emergency situations in which a student with a mental illness is threatening harm to himself or others.

 

[Lana]

I figure that if someones privacy rights are infringing on my or someone else's saftey, then it's no longer a private matter and no laws of confidentiality apply. This may be a bit tricky if the person is self-harming. But, if it "touched" anyone or anything out side of themselves, that should automatically trump any confidentiality clauses in the interest of safety.

 

[Misha]

True but there are also ways to remove a person from a situation in which they are a danger to others without breaking confidentiality.
It's supposed to be a need-to-know basis, and as far as I'm concerned, other parents don't need to know. If a student with a mental illness is a danger to themselves or others, they should be cared for in hospital, which would effectively remove them from the situation, eliminating the need to divulge any personal information.
Are they going to start warning people on sidewalks near the homes of people with mental illness?
While I do understand what they are trying to accomplish here, I think it does clearly violate a person's confidentiality and that situations like this only perpetuate negative stigma that exists in society.

 

[Lana]

Historically and statistically, persons with mental health fall turn out to be victims, rather then perpetrators. I belive the percentage is very very high. Having said that, I don't see disclosure on the grounds of safety to others as such a high risk.

However, when a person that suffers from mental health does committ a crime, that certainly does deliver huge damage. What makes it worse is that someone knew that the person was going to committ such an act, but never told anyone due to confidentiality clause.

To certain degree, I agree with you. However, if I put myself in the shoes of those that lost loved ones for no reason other then the killers right to confidentiality....I don't know if I can be so understanding or agreeable. It's a tough call either way.

 

[Misha]

They didn't lose their loved ones because of confidentiality laws. Telling people about it wouldn't have stopped anything. What needs to change is the "system"'s ability to effectively treat and house those with mental health concerns. Sure it makes people feel better to be "warned", but that need is based on a false perception of mental illness. People without mental illness kill people too.

 

[Lana]

It's all a matter of perspective, isn't it?

 

[David Baxter PhD]

True but there are also ways to remove a person from a situation in which they are a danger to others without breaking confidentiality.

Sometimes. Sometimes not.

It's supposed to be a need-to-know basis, and as far as I'm concerned, other parents don't need to know. If a student with a mental illness is a danger to themselves or others, they should be cared for in hospital, which would effectively remove them from the situation, eliminating the need to divulge any personal information.

We're not talking about informing other parents. We're talking about informing medical and police authorities to ensure the safety of the individual and others.

Are they going to start warning people on sidewalks near the homes of people with mental illness?

No because most people with mental illness do not present an imminent threat to others. But in the case of those who do, there is a moral and legal responsibility to take whatever action is necessary to prevent harm to self and others and that is almost always going to involve some breach of confidentiality. My clients sign a basic information form where they are alerted to the limits of confidentiality the first time I see them.

While I do understand what they are trying to accomplish here, I think it does clearly violate a person's confidentiality and that situations like this only perpetuate negative stigma that exists in society.

I don't agree. See my comments above as well as Lana's first point above.

Historically and statistically, persons with mental health fall turn out to be victims, rather then perpetrators. I believe the percentage is very very high.

Absolutely correct.

However, when a person that suffers from mental health does commit a crime, that certainly does deliver huge damage. What makes it worse is that someone knew that the person was going to commit such an act, but never told anyone due to confidentiality clause.

Again, absolutely correct.

To certain degree, I agree with you. However, if I put myself in the shoes of those that lost loved ones for no reason other then the killers right to confidentiality....I don't know if I can be so understanding or agreeable. It's a tough call either way.

Not really. The law is very clear: Where the patient/client presents a significant risk of imminent harm to self or others, the necessary steps must be taken to try to remove or minimize that risk.

They didn't lose their loved ones because of confidentiality laws. Telling people about it wouldn't have stopped anything.

Actually, you're wrong. Telling the authorities about the risk would have ensured that he received treatment for his illness, thereby reducing or eliminating the risk to others as well as himself.

What needs to change is the "system"'s ability to effectively treat and house those with mental health concerns.

No, what needs to change is the false defense of the individual's right to choose or refuse treatment where that individual presents a threat to self or others. This is the whole thrust of "Kendra's Law" legislation now enacted in many regions.

Sure it makes people feel better to be "warned", but that need is based on a false perception of mental illness.

You have misunderstood the issue. This is not about going door to door warning people of individuals suffering from mental illness who may be living in their neighborhoods. It's about informing appropriate authorities when someone, with or without a mental illness, presents a significant risk of imminent harm to self or others.

People without mental illness kill people too.

Of course they do. And were I to become aware of someone without a mental illness who presents a significant threat of harm to self or others I would have a moral and legal obligation to take necessary action in that case too.

 

[SoSo]

I have to agree with the fact that the 'authorities' should be notified in some case where there is an absolute risk to the public. Most that do the kind of thing that is talked about here need serious help, they would get it and the public would be safe. It can be done with just a couple of authorities picking the person up, quietly, without anyone knowing or as few as possible. It is a shame in a lot of areas of Canada, over and over, hospitals are closing. It seems the ones they target are the ones that deal with mental health issues. One of the things that a lot of people say is that these patients are now living in the streets or in missions. A real shame as they will not get the help they need there. A tough issue for sure.
Feisty

 

[Misha]

What you say is very true.

Besides clarifying the specific circumstance under which a disclosure to parents or others is lawfully permitted....

Sorry I understood from this sentence that they were talking about informing other parents.

I was feeling upset yesterday because of a situation that occurred in a mental health advocacy course I am taking where one of the people was really perpetuating a negative stigma. I think that affected my thinking on this one. I've had a really hard time with my own confidentiality, and with people making unfair assumptions. Sorry if I came across as confrontational.... I didn't mean to.

I think if all they're talking about here is alerting specific authorities.... we are ok. In that case its really no different than the idea of committing someone to hospital against their wishes... it is done for their own well-being.

 

[David Baxter PhD]

Sorry I understood from this sentence that they were talking about informing other parents.

The only time this would normally be appropriate would be if a specific threat was made to harm a specific individual, in which case that individual should be informed as well as the authorities, and possibly the individual's parents depending on the age of the individual.

They may also be referring to the possibility of the school infomring the parents of the person making the threat to self or others, again depending on circumstances including the age of that person.

 

[Misha]

Thanks, that makes a lot more sense!!