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Just Joe
Written by Editor   
Friday, 06 October 2006 17:59

On Tuesday, October 3, 2006, Northview public school parents received a letter from Superintendent Michael Stearns warning them of "an aggressive sexual predator and pedophile."[1] From news reports, the man in question is not a registered sex offender, nor has he ever been arrested for a sex offense. By Thursday, October 5, 2006 however, law enforcement arrested the man on an outstanding warrant. The man apparently "posted a $200 dollar bond" and is scheduled to be arraigned in "Rockford District Court on a misdemeanor charge of malicious destruction of property" sometime next week.[2]

When this story first came to my attention,[3] and as someone who has not only designed and implemented a HIPAA portal but takes issues of healthcare privacy quite seriously, I most certainly wondered if Mr. Stearns was not only being just a tad over-zealous but had engaged in actionable privacy violations as well. Further research into the matter however raises very real issues that are worthy of further consideration.

According to records obtained by John Agar of the Grand Rapids Press, 19 year-old "Joe" was made a ward of the court in 1985 when he was 11 and was institutionalized in a "secure psychiatric center" until just this past July. Dr. Paul LaBerteaux, along with "Joes" treatment team noted "almost unanimous consensus that (he) poses a high risk of sexual molestation of children and violence to others." What is notable from Agars report is the list of psychiatric diagnoses: "Reactive attachment disorder, Pedophilia, Paraphilia, Antisocial personality disorder, Depression, and PTSD." (emphasis added) In addition to "Joes" rather bleak diagnosis, he has reportedly killed animals and was allegedly "involved in three assaults and 30 to 40 acts of sexual or aggressive behavior" during the past year at the Pine Rest mental health facility.[4]

While understandably reprehensible to most of us, Paedophilia is not illegal. Acting out paedophilic impulses is. In this case, even if Agars report is accurate, Mr. Stearns and/or the mental health workers may very well have violated not only local client confidentiality laws but Federal laws as well.[5] Healthcare privacy is indeed important. So much so that client privacy is codified for practicing mental health workers at both the local and national level. There are however three exceptions which preclude client privacy: the disclosure clause, the duty to report, and the duty to warn.

Of the three exceptions, the "disclosure clause" is arguably the most generic. This clause involves issues where a client may be a danger to themselves and/or others--where "others" can represent an unknown 3rd party. Under this clause, law enforcement can be notified of a clients intent to harm themselves or others without being in violation of the confidentiality rule. Of the other two exceptions, the duty to report requires the physician report instances of suspected child abuse[6] whereas the duty to warn is quite specific and requires an identifiable 3rd party. The latter is based upon Californias precedent setting Tarasoff ruling[7] and Michigan laws codification of same said requires mental health workers report intent to harm explicitly to the identified 3rd party.[8] All three exceptions are discretionary.

In light of the current case and based upon the healthcare privacy code, not only Mr. Stearns but the individual (or individuals) who released "Joes" records, may very well have violated the local and Federal laws. Exclusive of our (being the universal our) natural desire for privacy, these laws were enacted for a reason. The least of which includes protecting individuals from being discriminated against or otherwise harassed due to whatever mental disorder(s) they may have. In fact, sources close to the case have reported that "Joe" has been harassed, to include having received death threats, following the public disclosure of his mental health records.

Even so, as parents, the desire for disclosure is quite understandable. After all, based upon the reported records, "Joe" represents a clear and present danger to the children of Plainfield Township. And herein lies the problem. For the law requires clearly defined intent, an identified target, or both. Yet the danger that lurks is neither. Thus, ignoring the law risks the potential for violence in the form of vigilantism whereas following the law increases the risk for violence against the communitys children. This is the one versus the many conundrum that we (being the universal we) must regularly face. Whether it is making choices--in this case, violating the privacy of a "potential" sexually violent predator--or releasing them due to gross incompetence, such as occurred in the case of John Mark Karr.[9]

In the end, while some, many, or even all, may see the law as protecting the guilty, its purpose is to protect the truly innocent. In reality, for the most part, it does as it should. There will however continue to be exceptional cases--especially those which frustrate us to no end. And it is these cases that not only raise our consciousness with regard to legal shortcomings but also compel us to change its future interpretations, and if need be, change its very wording. In this particular situation, risk factors indicate this man will offend. Unless and until he does however there really isnt much anyone can do outside of increasing their own personal security and that of their children.

 

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