By Alexis Artwohl, Ph.D.

[This article was originally published in The Tactical Edge, the professional publication of the National Tactical Officer’s Association (NTOA), and is reprinted with permission. ntoa.org]

Confidentiality of debriefings is a concern, especially considering that debriefings with police officers may involve legally sensitive events such as officer-involved shootings. Breaches of confidentiality causing serious problems are rare. However, all officers should be aware of the limits of confidentiality specific to each situation and each individual with whom they are discussing the event. This will be dependent upon who that person is, the nature of the officers’ relationship with them, the location and a host of other factors. A complete discussion of the limits of confidentiality is beyond the scope of this article and no article could cover every specific situation. The purpose of this article is a general discussion of some of the issues involved which officers can use as a starting point to educate and protect themselves.

Only some individuals have legally privileged confidentiality, meaning that there are legal limitations on the circumstances under which they can be compelled to reveal information by the courts or other third parties such as police agencies. The laws defining legally privileged confidentiality vary by location. In the U.S., this would typically include officially licensed professionals such as attorneys, mental health professionals, medical professionals and members of the clergy with whom you are having a discussion as a client. In some states, peer support personnel may have some legally privileged confidentiality in various specific circumstances. Some locations might extend this privilege to other individuals such as legal spouses. Knowledge of local laws can avoid unpleasant surprises. Confidentiality, legally privileged or not, will always have exceptions, such as cases where an individual is presenting an immediate threat to self or others, or there are other serious concerns.

In the case of professionals with legal privilege, they are allowed to reveal information if their client chooses to waive the right to confidentiality. This will happen in the form of a written authorization to release information signed by the client and may be initiated by the client for his own perceived benefit. There are some circumstances, such as filing a workers’ compensation claim, where waiving the right to confidentiality may be an automatic part of the process.

Keep in mind that legal privilege which any individual has in a specific state may or may not extend to federal courts. This could become relevant in the case of incidents that end up in federal civil rights violation lawsuits.

Even with those professionals who have legally privileged confidentiality, there are exceptions where confidentiality may be appropriately breached in a voluntary and/or compelled manner. Typical exceptions would be if a client presents an immediate threat to self or others, or is engaging in child or elder abuse. Other exceptions can occur if the client becomes involved in a legal action in which he or she claims to have been harmed by another party. Under those circumstances, the client’s medical records, including contact with mental health professionals, may become open to the discovery process. This is not an all-inclusive list and the exceptions to confidentiality will vary depending on the situation and the individuals involved. When in doubt, ask an attorney for further clarification.

Professionals with ethical obligations to maintain confidentiality face penalties for breaching confidentiality without a valid reason in the form of professional sanctions from their licensing boards, plus they are vulnerable to civil litigation claiming a breach of confidentiality.

For those non-professionals for whom confidentiality may be legally privileged, that doesn’t necessarily mean it is illegal for the confidentiality to be breached if the individual chooses to do so. For instance, spouses may have legally privileged confidentiality in some locations. However, if they choose to reveal information told to them in confidence, that does not necessarily mean they have broken the law or will face any official penalties. Peer support personnel who choose to reveal information without a valid reason may face penalties such as expulsion from the peer support team. Peer support personnel who are not protected by legal privilege may be legally compelled to reveal information if they are ordered by their department or the courts to provide it.

In group debriefings conducted by individuals with legally privileged confidentiality, this legal privilege may not extend to the individual participants in the group who do not have legal privilege under local laws.

In an individual debriefing with a mental health professional, the confidentiality situation can become confused if that same professional is expected to also render an opinion on whether or not the officer is ready to return to work. In the case of debriefings, the officer is the mental health professional’s client. In the case of a fitness-for-duty evaluation, the agency is the client. This can create confusion over who owns the information and what it is appropriate for the mental health professional to share with the agency. For this reason, the “Officer Involved Shooting Guidelines,” written by the Psychological Services Section of the International Association of Chiefs of Police, recommend the following:

“5.11. If a fitness-for-duty evaluation is requested, it should not be conducted by the mental health professional who provided the post-shooting intervention. However, as part of the post-shooting intervention, the mental health professional can assist officers in making decisions concerning returning to duty. Officers maintain the right to privilege and confidentiality regarding such communications unless otherwise waived (e.g., in the context of a workers’ compensation claim).”

The guidelines also point out that:

“5.8. It should be made clear that the individual post-shooting intervention is a confidential and legally privileged communication between the mental health professional and the officers involved. No information about the content of these sessions should be released without the officer’s written authorization.”

The Psychological Services Section has also published guidelines for peer support personnel (PSP). In regards to the confidentiality of peer support team communications, it states that:

“18. Departments should have a policy that clarifies confidentiality guidelines and reporting requirements and avoids role conflicts and dual relationships.

  1. PSPs must respect the confidentiality of their contacts, must be fully familiar with the limits of confidentiality, and must communicate those limits to their contacts. Such communication needs to be given to the individuals directly served and ideally will also be provided through agency-wide trainings.
  2. Limits to confidentiality should be consistent with state and federal law as well as departmental policy, and usually include threats to self, threats to others, child and elder abuse, and serious violations of the law. Additional exceptions to confidentiality may be defined by specific state laws or department policies (such as sexual harassment and workers’ compensation). These should be well defined in the PSP manual, including procedures in the event one of these rare exceptions to confidentiality should occur.
  3. It is essential that PSPs advise members of the level of confidentiality and legal privilege that they can offer. PSPs must demonstrate knowledge of the limitations to these protections in their department as well as knowledge of how they might be affected by potential federal proceedings.
  4. PSPs must not provide information obtained through peer support contact to supervisors and should educate supervisors of the confidentiality guidelines established by the department. Agencies should not use PSPs in internal affairs investigations.
  5. A PSP must not keep written formal or private records of supportive contacts other than non-identifying statistical records that help document the general productivity of the program (such as number of contacts).”

As can be seen from this brief discussion, the issue of confidentiality can be complex and confusing. However, you can get a better handle on it by taking responsibility for protecting yourself by asking questions of those conducting debriefings such as:

  1. Do you have legally privileged confidentiality?
  2. Is this legal privilege also valid in federal courts?
  3. Under what circumstances would you breach confidentiality without my written consent?
  4. Will you be rendering a judgment to my agency on my fitness to return to duty?
  5. What information will be provided to my agency?
  6. What written records of this debriefing will you keep?
  7. What specific information will be included or excluded in your written records?

In cases where you become involved in legal action claiming you have been harmed, such as a workers’ compensation claim, always carefully read everything you are signing and make sure you thoroughly understand any waivers of confidentiality that may be included in the documents

It is important that you feel comfortable, well-informed and trusting of the debriefing process. If for any reason you do not, you have the option to stay silent even if you are ordered to attend a debriefing. The OIS Guidelines state that:

“5.2. Some officers would choose not to participate in the post-shooting interventions provided by qualified mental health professionals, yet when required to attend, they often find it helpful. In addition, some may be unaware of the potential impact of the incident and choose not to attend. For these reasons, it is recommended that officers be required to attend one individual post-shooting intervention so they can, at a minimum, be provided with basic education and coping skills to better manage their reactions. While officers may be required to attend at least one mandatory session, this does not mean that it should be mandatory for them to discuss the event or how they feel with the mental health professional. Any participation beyond attendance should be voluntary on the part of the officers.”

Keep in mind that you can also be selective about what you choose to discuss. For instance, you can discuss how you are generally doing and/or ask for information and guidance without discussing the details of the event.

As discussed in my previous column “Why do debriefings?”, there are valid reasons for attending well-conducted debriefings to obtain the information and social support that can help you and your family through a difficult time. Educating yourself about the limits of confidentiality can help you confidently utilize this valuable resource.