What happens when privacy rights and mental illness collide?

Personal privacy and individual autonomy are profound values in American society, but legislating these values can have unexpected consequences when confronted with the symptoms of mental illness. For example, the Family Educational Rights and Privacy Act (FERPA) is a Federal law that protects the privacy of student education records. While parents have certain rights with respect to their children's education records while they are young, the rights transfer to the student when they turn 18. What does this mean in the real world, when mental illness develops?

A child is considered an adult on his or her eighteenth birthday, so parents no longer have access to their son or daughter's records except in limited circumstances "in connection with a health or safety emergency." In past years, Department of Education policy had been to very strictly interpret this exemption. Recently the regulations changed, and since the beginning of 2009 schools may consider "the totality of the circumstances" pertaining to a threat and disclose if there is "an articulable and significant threat to the health or safety of the student or others."

If this sounds hard to pin down, it is. These are judgment calls, and the Department of Education has indicated that it will not second guess a school that has a "rational basis" for determining that a health and safety emergency existed. However, the school must maintain a record of all requests for access, all disclosures, all redisclosures, and must keep a record of the "articulable and significant threats" to health or safety that formed the basis of its decision to disclose. The school must also keep a written record of who it sh ared the information with.

There are exceptions. A parent is always entitled to his or her child's education records if the child is a dependent for tax purposes. Most college students in the United States do count as "dependents," so FERPA - if correctly interpreted and applied by the school - should not restrict access in the vast majority of cases. If not, regulations specifically clarify that a student's parents are appropriate persons to whom the school may disclose information without the student's consent in a health and safety emergency. But what constitutes an emergency? The Department of Education specifies that a student's suicidal statements coupled with unsafe conduct and threats against another student, constitute a "health or safety emergency" under FERPA, and can be disclosed. Does that standard go too far, or not far enough, in involving parents when a student has a mental illness?

Learn more

U.S. Department of Education Guidelines on FERPA

Jed Foundation publication Student Mental Health and The Law

Are there unintended consequences to this threshold?

A person may be committed for involuntary treatment if he poses a danger to himself or others. While the specific standards of state civil commitment laws vary widely, this concept of "dangerousness" has become a common criterion. When advocates for the mentally ill worked to establish that a person may not be treated against his will unless he is dangerous, they tried to draw a circle of liberty around the individual, protecting him from state coercion. Limiting involuntary commitment to situations of dangerousness was an effort to balance two sets of important concerns: safety, on the one hand, and civil liberties on the other.

But the hedge between these concerns has had an unfortunate effect of creating a tighter linkage between mental illness and dangerousness, both practically and in public perception. This is because it can make dangerousness a gate - a prerequisite - to compelled civil treatment. In the real world of tight state budgets, people who voluntarily seek treatment often are turned away, as the limited funds available can only extend to provide services for the dangerous patients that the hospitals must admit. In effect, the standard of dangerousness has become a way to ration scare resources for mental health care. As a consequence, for people without the means to pay for private mental health services, dangerousness has become a threshold that they have to cross before they can get treatment.

This can create perverse consequences. It results in people needing to become much more ill - and manifesting behavior that might appear dangerous - before the state is required to provide treatment. Waiting until this stage of illness can make it more expensive to provide treatment and reduce the likelihood of recovery. It also means that many severely mentally ill people who never become dangerous - as most do not - may never receive treatment at all.

The limits on treatment prior to people becoming "dangerous," combined with the powerful public perception that people with mental illness genuinely are dangerous, also work to concentrate the mentally ill in the criminal justice system. A person with untreated mental illness may behave in an erratic way that is disturbing to the public - say, loud ranting in a public place. Instead of being seen as ill and in need of medical assistance, the person may be perceived as frightening and dangerous. To deal with such a situation, police (not medical or psychiatric personnel) are the first responders in almost every jurisdiction. The focus is generally for the mentally ill person to be removed for the public's benefit, not for their own health and welfare.

If dangerousness is not the right standard, how should the concerns for individual liberty, access to treatment, and public order be balanced? Are the police, who also have limited resources, the right first responders for mentally ill people creating a nonviolent disturbance? And if the state obligation to treat the mentally ill were not predicated on "dangerousness," would fewer mentally ill people have to descend into dangerousness before they could obtain treatment? There are no easy answers to these questions. But the real danger here may be in not addressing them, particularly now that we have the science to understand and treat mental illnesses more successfully than ever before.

Should motive matter when it is the symptom of an illness?

It is the bedrock of almost every legal system in the world that it is unfair to punish people criminally for conduct they did not intend, like accidents or mistakes. A person's blameworthy intention, not just his conduct, provides the basis for just punishment. Mental illness raises challenging questions for the law about the nature of intention.

To convict a person of a criminal offense, a prosecutor must prove that the individual had intention in connection with the law-breaking actions. Usually, the state must show that a person acted with the "purpose" to do the prohibited thing or had "knowledge" both that the action was prohibited and that harm would result. Did the defendant intend to shoot the victim, or did the gun go off accidentally? If the state can prove the defendant intended to shoot the victim, it can convict for murder. By establishing a motive for a murder, "why" the person shot the victim an help build the prosecutor's case in the eyes of the jury. But it is not relevant to the actual judgment of culpability.

Motive plays such a major role in crime dramas and news reports that it may come as a surprise for people to learn (or be reminded) that criminal law is actually largely indifferent to motive - the reason why the person did what she did. If a person intended to leave a store with merchandise that she did not pay for, and did so, she has shoplifted - regardless of whether she shoplifted for a good or bad motive (for example, to feed her hungry baby or because she enjoys the thrill of breaking the law).

The law's focus on the person's intention (also called "mental state") but indifference to motive serves some valuable purposes. First, it helps make the law clear: A person knows that she is violating the law if she intentionally engages in the prohibited conduct. She doesn't have to guess whether the state will judge her motive as acceptable. Second, it means that the state does not put itself in the position of evaluating the actor's motivations. Keeping the law focused on intent and conduct reduces its scope for exercising moral judgment.

For the mentally ill, however, the law's indifference to motive can present challenges. Mental illnesses can interfere with a person's perceptions. The person then takes actions based on distorted perceptions - actions she would not have taken in the absence of the disease. Take shoplifting: If a mentally ill person intentionally takes an item from a store without paying for it, she has shoplifted. But what if she only took the item - say, an expensive roll of insulation - because she heard voices coming through her walls that had kept her up for days? Having tried repeatedly to get the authorities to stop the "transmissions" into her house, and desperate for sleep, she takes the insulation.

Here, mental illness is the "but-for" cause of the crime: If the defendant's illness did not cause her to suffer the auditory hallucinations, she would not have taken the item. Should the law account in any way for the role that mental illness played in this person's actions?

On the one hand, she is not at fault for having the illness. Punishing her for taking the insulation is like punishing her for being ill. Surely punishing someone for expressing the symptoms of an illness is unfair.

On the other hand, many people engage in law-breaking conduct as a result of factors that are outside of their control and that feel compelling. Just as a person does not choose to be mentally ill, a person does not choose, for example, to be poor. If a person could claim that she would not have shoplifted but for her dire economic circumstances, should the law excuse her? And if it did, would that open the door to a host of excuses?

The broader question is: Should the law make a distinction between people's lawbreaking actions where the motive flows from a physical affliction - mental illness - versus where the motive flows from social, circumstantial, or other non-physical causes that may also be outside of the actor's full control?