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Legal News
Failure to Communicate Played Role in Va. Tech Tragedy
Psychiatric News
Volume 42 Number 20 page 13-13

Failures to "connect the dots" leading up to major tragedies look all too obvious with the benefit of hindsight.

Among other observations, the review panel appointed in the wake of last spring's Virginia Tech shootings cited failures to communicate about the gunman, Seung Hui Cho, among campus administrators, the counseling center, police, and others. All parties, said the panel, thought that "such communications were prohibited by federal laws governing the privacy of health and education records."

"The governor's Virginia Tech report highlights the enormous sources of confusion among counseling centers about what can and cannot be disclosed," said Jerald Kay, M.D., professor and chair of psychiatry at Wright State University School of Medicine in Dayton, Ohio, and chair of APA's Committee on Mental Health on College and University Campuses. "Many universities have no policies or procedures to guide faculty, residential advisors, fellow students, police, or administrators about communications."

Yet barriers are not as ironclad as university administrators may have thought, and they have explicit exemptions if health or safety is endangered, said attorneys and psychiatrists familiar with campus privacy issues. Many such barriers arise from either unfamiliarity with applicable laws or misinterpretation of laws or court cases.

Virginia Tech had established a Care Team to deal with troubled students well before the massacre. However, the unit did not have the campus police as regular members and so didn't know that Cho had threatened suicide or had been involuntarily detained overnight for psychiatric evaluation, said the panel's report. The residential-life staff had not informed the Care Team about several reports on Cho's behavior in the dorms. Faculty concerns about a" sullen, foreboding male student" who "frightened classmates and faculty with macabre writings" elicited only an agreement from the Care Team that private tutoring was the appropriate response to the troubled student.

Contributing to that lack of clarity about communication may have been the broad range of institutions covered by the Family Educational Rights and Privacy Act of 1974 (FERPA), suggested attorney Karen Bower, J.D., senior staff attorney at the Bazelon Center for Mental Health Law in Washington, D.C. FERPA protects the privacy of student education records and applies to all schools that receive funds from the U.S. Department of Education.

"FERPA applies to all school settings, including elementary schools," said Bower, in an interview. "For example, in special education and in [diagnostic] educational testing in schools, should the documentation be considered educational records or treatment records?"

Looking at the case from a purely legal point of view, however, may be counterproductive.

"You have to be cautious in a post-Virginia Tech world that the system doesn't become too constraining," said psychiatrist Victor Schwartz, M.D., university dean of students at Yeshiva University in New York City, in an interview. "Students won't come for help if they don't have faith that the system will support them."

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When information or records about a student can be released to his or her parents without the student's consent is another question. However, FERPA prohibitions don't apply when the student is still claimed as a tax deduction by the parents or when there is a need to protect the health and safety of the student or others, said Bower. (Some state laws may be more restrictive.)

The Virginia investigation revealed that Seung Hui Cho's parents had sought and obtained treatment for their son during much of his childhood, contrary to much speculation at the time of the incident.

"The Cho family had done a good job of getting him help, but they had no idea that there was a problem at Virginia Tech or that he had been transported for a psychiatric evaluation," said Gary Pavela, J.D., director of judicial programs at the University of Maryland.

The choice of when to communicate with parents can be difficult.

"If the clinician thinks there is a family issue, it needs to be addressed, even if the student initially fears the family will be angry because he has sought treatment," said Schwartz. "Bringing the family in is usually helpful, although in really bad situations, it may not be helpful at all."

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There is a valid barrier between what happens in the high school or earlier years and what can be passed on to colleges during the application process, said Pavela. Disclosing an applicant's mental health status to the college would violate the Americans With Disability Act (ADA), and a university that rejected a student because he or she had been diagnosed with a mental illness would be guilty of discrimination.

Nonetheless, the ADA doesn't preclude offices at colleges and universities from using medical records for nonmedical purposes after admission, such as when a student voluntarily seeks an educational adjustment due to a disability, Bower explained.

"Medical and mental health records received or maintained by the school for nontreatment purposes, like those provided to the office of disability for purposes of obtaining an accommodation, are 'education records' and are governed by FERPA," said Bower. "They do not fall into the exception for 'treatment records' since they are not for treatment purposes."

Once treatment begins, clinicians, including those on college campuses, are legally bound to maintain confidentiality and adhere to the ethics codes of their professions.

That still leaves room for communication with parents or pertinent college officials. FERPA covers written records but not necessarily oral communications, said Bower.

Discussions between therapist and patient may be confidential, but a student conversation with faculty or fellow students, said Pavela, "is not constrained by medical confidentiality because there is no therapeutic relationship."

So if a student makes a suicidal statement to a roommate, and the roommate goes to a residential adviser, who passes the information along to an administrator, the administrator can mandate an evaluation or call the family, since all the communication so far has been oral and outside the bounds of professional confidentiality.

While the Virginia panel suggested some changes in state law to clarify what information can and cannot be exchanged among educational, clinical, and law enforcement entities, Kay maintained that guidelines can be used to achieve that end, undergirded by basic principles that balance students' rights, the need for care, and the greater community's welfare.

"We make a mistake to focus on the liability versus treatment issues," agreed Schwartz. "We can't ignore the people around troubled students—fellow students, family, and the rest of the community. However, the patient and the therapeutic angle should take precedence within the limits of the law."

"If you're thinking that these are primarily legal issues, you're already in a bad position," said Schwartz. ▪

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