This immigration policy violates sacred patient-doctor confidentiality
Opinion by David Perry
Updated 6:53 AM ET, Wed February 26, 2020
Talking about immigration, across the political divide 04:31
David M. Perry is a journalist and historian. He is senior academic adviser in the history department of the University of Minnesota. Follow him on Twitter. The views expressed here are those of the author. View more opinion articles on CNN.
(CNN)When violence forces people to flee their homes and cross borders legally or illegally, seeking asylum or other forms of refuge in a peaceful place, they carry their traumas with them. That’s certainly true for many of the Central American immigrants who have tried to emigrate to the United States over recent years. Many of them have witnessed or experienced such horror as rape, torture and murder.
What’s more, many of them, including children and teens, have been forced to participate in acts of violence themselves before fleeing. And when they get to the US and are put in custody, thanks to a relatively new policy passed by Scott Lloyd, Trump’s former director of the Office of Refugee Resettlement (ORR). As part of a 1997 court-ordered settlement establishing minimum detention standards for children, those children and teens are told they need to seek therapy; they are required to meet with counselors.
According to the explanation offered to Congress by Steven Wagner, then overseeing ORR, children are told that it is essential to be honest about themselves with their therapists. But under the Trump administration, according to recent reporting from The Washington Post, officials from Immigration and Customs Enforcement take the therapists’ notes and use them as weapons against the teenage migrants. According to Wagner, therapists must file a report within four hours of their sessions to be given to ICE within one day. The teens are told that what they say can affect their status, but they are also told it’s “essential” to be honest in these required meetings, according to the Post.
This alleged practice may be legal, but it’s not an ethical position in which to place migrant teens badly in need of therapeutic support. In fact, it’s an egregious violation of the core basis of confidentiality which makes effective therapy possible and is another horror inserted into the immigration system by Trump officials that abuses the most vulnerable.
Someday, when we’re lucky enough to enter a post-Trump era, we’re going to have to confront what government officials, working in the name of the American people, have visited on the most vulnerable. We’re not going to be able to move forward unless we assess the past and hold those responsible accountable for the misery that they cause.
It’s not clear at this point how much the therapists are to blame, though the American Psychological Association has called for an immediate halt to the practice of sharing therapy notes with ICE. Certainly, the revelations mandate two immediate steps for any therapist. First, don’t promise confidentiality to people in danger of state persecution. Second, if ICE isn’t going to give you a choice about whether to share your notes, don’t take notes.
The revelations about misuse of therapeutic notes emerged in a Washington Post story by Hannah Dreier published earlier this month. The Post reported that some shelter therapists are aware of the policy and say they work actively to protect children’s privacy — keeping two set of clinical notes or leaving some things out entirely. At one New York shelter, therapists keep disturbing artwork at risk of being misunderstood as violent out of official files. The Post also notes that it’s highly likely that some shelter therapists are pledging a degree of confidentiality with the children that the policy will not allow them to keep.
Dreier’s article told the story of Kevin, a teenager who found a therapist he could confide in while being held in an ORR shelter in Texas. He told the Post that his therapist said to him, “This is your opportunity to tell us your story” and that their conversation would remain private unless he described harm to himself or others. Because he told the therapist about being forced into gang activity, ORR transferred him from the shelter to a higher-security detention center.
Kevin felt betrayed but still needed therapy. In detention, he eventually met another therapist and slowly learned to trust him, disclosing more and more of his story.
CNN reached out for comment to ICE, which said in a statement that the agency “prioritizes public safety threats when conducting immigration enforcement and making custody determinations” and explained that “ICE has closely followed legal protocols in this case.” A spokesperson also said that ICE found nothing factually incorrect about the Washington Post’s report and deferred any questions about the ORR policy itself to ORR. The current deputy director for children’s programs at ORR told the Post, emphasizing their interest in community welfare, “We’re housing children with an eye toward child welfare, but these kids are not meant to be in our care forever; they’re meant to get out.” She also said that ORR performs the role of legal guardian for children in its custody; as de facto parents, she said they have a right to see children’s records and share them as deemed fit. Eventually, a judge granted Kevin asylum, but ICE appealed the decision on the basis of that first therapist’s notes. Kevin is still incarcerated.
People fleeing violence in Central America have experienced trauma that’s truly unimaginable to me. Tina Vasquez, who has reported on immigration for a number of outlets for years, told me that “therapy — or access to mental health care — comes up consistently with many formerly or currently detained people I have been in touch with.” She says that “many immigrants, especially women and LGBTQ folks, also experience gender-based violence of sexual violence en route to the US.
“In detention, many people experience abuse or at the very least, experience depression and anxiety. Many asylum-seekers have PTSD. Their time in the immigration system only exacerbates the mental health issues they are experiencing.” They need mental health care, and the idea that these instances where children like Kevin finally get access to “the care they need,” only to have it “weaponized against them. It is an incredible violation of their trust, of their rights and of their dignity.”
Therapy is an important tool in recovery from trauma, which I know firsthand. I see a therapist when I can manage it emotionally, though sometimes (like now), I have to take a break because the sessions are so exhausting. I work through decades of depression and suicidal ideation, the grief of losing my mother, my fears about my father’s declining health, and develop techniques to engage the world more mindfully. The idea that the things I talk about in therapy, the times when I deliberately probe my worst thoughts and experiences, might be used as evidence of my bad character strikes against the whole idea of therapy as a space for honesty, introspection, and work.
Why would a therapist take notes that jeopardizes their client’s future? Agustina Vidal, program director for mental health and advocacy group The Icarus Project and herself an immigrant from Argentina, says that we can’t simply blame ICE and ignore the therapists themselves. She’s known since her own experiences with immigration not to trust that medical information will be held confidential from the government. She says that counselors in all circumstances “should operate under the assumption that their records can be subpoena and should have diagnosis and recording practices that ensure, that if confidentiality is broken, their records won’t cause harm to their clients.” Any court can subpoena therapy records, but Vidal says, “It is different for immigrants because mental health diagnosis affects immigration status. The Catch-22 is that untreated emotional issues also increase risk of deportation.”
Vidal thinks that while the therapists surely were behaving within the law, they do bear some degree of culpability. In her view, they “violated the code of ethics (of the American Counseling Association) by not providing informed consent, by not explaining to clients the risks and the limits of confidentiality.” Given that the clients here were migrant children in custody, “Looking at the legal and ethical foundation that is required of all counselors, it’s hard to see how the counselor failed to perceive and communicate these risks.”
When I read about these therapists, I hope they are not given the same impunity granted to others who have fundamentally violated the doctor’s oath to “do no harm.” In the most extreme example — the doctors implicated in the CIA’s use of torture during the Bush administration — to my knowledge, no medical practitioner or counselor even lost their license (there were lawsuits and general statements of condemnation, but their complicity in no way impeded their ability to call themselves professionals.) No matter the severity of the end result of the violation, there has to be a line where practice ends and complicity begins.
We need to understand who decided to collect these therapy notes and to make sure they never have oversight over detained children again. We need to know whether anyone tried to protect the children and indeed whether individual therapists made all possible ethical steps to protect their clients, and yes, maybe even some of them are going to be held professionally accountable. We won’t know until we have all the facts. It’s going to take a presidential inquiry and brave leadership to push past all the people who will claim they were “just following orders” in order to find those facts.
In the meantime, if you are a therapist and ICE comes asking for your confidential notes, you say no. Then you burn them. Then you quit. Or you carry complicity with you for the rest of your life.
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