PSYCHOLOGISTS AND THE PATRIOT ACT

By John B. Mansdorfer, Ph.D.
July 1, 2004



As a clinical psychologist in private practice I spend much of my time listening to others express their problems, fears and concerns about their personal lives. Occasionally those concerns and fears include the larger world problems of war and terrorism. But, until recently, I did not know that terrorism and legal acts to confront it might impact the way I practice psychology.

Most of us have heard of “The Patriot Act,” known legally as “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.” While we may not know what the act says, the title seems to explain the purpose of the measure. It is to strengthen the country by providing government agencies with the tools needed to interdict and prevent acts of terrorism. And it can, in part, dictate how we may have to conduct ourselves professionally as psychologists.

The Patriot Act was passed on Oct. 21, 2001, just six weeks after the Sept. 11 attacks on the World Trade Center and Pentagon. The act was passed with little debate and with only one senator voting against it. To a large degree it amended the earlier Foreign Intelligence Surveillance Act of 1978. It made that act stronger and gave the government more power to conduct various types of surveillance and intelligence gathering operations among American citizens, as well as foreign nationals living in the United States or abroad.

As psychologists, the section of the act that directly impacts us and the way we practice our profession is Title II, which is titled, “Enhanced Surveillance Procedures.” Of concern to us specifically are sections 213 and 215.

First, we will consider Section 215, “Access to Records and Other Items Under the Foreign Intelligence Surveillance Act.” It begins:

“Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following: Sec 501. Access to certain Business Records for Foreign Intelligence and International Terrorism Investigations”(a) (1) The Director of the Federal Bureau of Investigation or a designate of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents and other items) for an investigation to protect against international terrorism or clandestine intelligence activities…”

The title says “certain business records,” but legal experts agree all records, including medical and psychological records, can be demanded. This may seem somewhat like other situations psychologists face when presented with a subpoena or a release of information form. The usual response is to claim the privilege, and then contact your patient and alert them to the fact that a demand has been made for their records. If the subpoena or release of information form is valid the psychologist then discusses with the patient what will be released, and explores the clinical ramifications of releasing the information.

But, under the Patriot Act that cannot be done. In fact, Sub (d) of Sections 215 states the following:
“No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.” This is amplified in the previously mentioned Section 213, titled “Authority for Delaying Notice of the Execution of a Warrant.” It reads, in part: (b) Delay – with respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required to be given may be delayed if – (1) The court finds reasonable cause to believe that providing immediate notification of the executions of the warrant may have an adverse result…”

Here we see the ethical dilemma. Psychotherapy is based on trust. The Patriot Act creates a situation where government agents can come to your office, demand your records about a patient, and forbid you under penalty of law from telling that patient he or she is under investigation, and that you have broken confidentiality. These sections of the Patriot Act seem to put psychologists in conflict with our own Ethics Code. Specifically, General Principle A: Beneficence and Nonmaleficence, Principle B: Fidelity and Responsibility, and C: Integrity. Also individual standards 1.02: Conflict Between Ethics and Law, Regulations, or Other Governing Legal Authority; and standard 3.04: Avoiding Harm.

The first sentence of General Principle A: Beneficence and Nonmaleficence, states: “Psychologists strive to benefit those with whom they work and take care to do no harm.” Principle B: Fidelity and Responsibility, starts: Psychologists establish relationships of trust with those with whom they work.” And Principle C: Integrity begins: “Psychologists seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology.”

The General Principles are aspirational in nature, but Ethical Standard 1.02 begins, “If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict.” Ethical Standard 3.04 starts: “Psychologists take reasonable steps to avoid harming their clients/patients, students, supervisees, research participants, organizational clients, and others with whom they work…”

How can we as psychologists deal with this situation? The APA Ethics Office and the Professional Practices Office both have this aspect of the Patriot Act under consideration. At the time of writing they have not established a position on the matter.

One possible answer to “what do we do?” is found in Ethical Standard 10.01: Informed Consent to Therapy. This standard obligates us to inform our patients “as early as feasible in the course of therapy…the limits of confidentiality…” Legal experts have suggested we can change our Office Policy Statements to read in part, “We may disclose your health information to authorized federal officials who are conducting national security and intelligence activities or providing protective services to the President or other important officials. By law we cannot reveal when we have disclosed such information to the government.”

The California Department of Consumer Affairs and many other state regulatory offices mandate that clinical psychologists have a notice posted publicly telling patients how to send their complaints to the Board of Psychology. If you do not wish to change your Office Policy Statement, a publicly posted notice containing the above information would also meet the requirements of Informed Consent.
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John B. Mansdorfer, Ph.D., is chairperson of the San Diego Psychological Association’s Ethics Committee and chairperson of the Executive Committee of the California Psychological Association’s Colleague Support and Assistance Program. He can be reached at 760/ 729-6009.

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