Date of this Version
Abdel-Monem, T., DeKraai, M., & Bulling, D. (2017). Privileged communications of military chaplains and mental health professionals: Case law of Military Rules of Evidence 503 and 513. Military Law Review, 225(1), 289-345.
Alarmingly high rates of post-traumatic stress disorder (PTSD) and suicide among Service members returning from military action1 has increased focus within the United States military about effectively providing mental health services.2 Concerns include problems related to an insufficient mental health workforce, military culture, and delivery of services.3 Within this context, how sensitive personal information is handled while seeking mental healthcare is a major concern for service members. The Department of Defense (DoD) and the U.S. Department of Veterans Affairs (DVA) recently partnered to examine opportunities for chaplains to have a role in improving mental health efforts, largely because of their well-respected place within military culture, and the absolute confidentiality they enjoy with communications.4 This initiative—the Integrated Mental Health Strategy—recognizes the important potential chaplains have to promote mental healthcare.5 However, it generates a need to address important practical concerns. A primary issue is how chaplains and mental health providers can work—separately or together—to handle sensitive mental health information of servicemembers.6 This is a major concern because many servicemembers fear that disclosure of mental health issues can jeopardize their military careers if they are perceived as being unfit.7 At the same time, the appropriate handling of such information can be instrumental in helping servicemembers obtain assistance if needed. This raises the question of what the current legal landscape is for the treatment of confidential information by either chaplains or mental health providers within military courts. Military rules regarding privileged communications are currently the primary sources of guidance on these issues. This article provides an overview of applicable military case law on the treatment of privileged communications for both chaplains and mental health professionals. After the introduction in Part I, Part II provides an overview of military chaplaincy, their potential role in addressing mental health needs among servicemembers, and a summary of the mental health landscape. Part III focuses on a review of military cases concerning Military Rule of Evidence 503: Communications to clergy. It identifies the policy rationale behind the clergy privilege, and outlines major military appellate cases which have examined privileged communications under this rule for chaplains, many of which are relevant to situations involving instances of self-harm or harm to others. Part IV outlines case law concerning Military Rule of Evidence 513: Privileged Communications and Psychotherapists. This section identifies the policy rationale of the psychotherapist privilege, and discusses major military appellate cases which have arisen since the privilege was created by presidential order in 1999. Finally, part V discusses the implications of this case law within the framework of the wider policy goals of each rule of evidence, and offers suggested guidance for those working in this area.