Readers may have heard references to doctor-patient privilege, which ensures confidentiality of a patient’s sensitive medical information under many circumstances.
In the military, however, this privacy right is not as broadly defined. Specifically, the military command exception, a function of the Health Insurance Portability and Accountability Act, provides that a service member’s health records can be disclosed in certain situations. The enumerated list includes determinations of fitness for duty or other assignments.
Patient confidentiality for mental health or substance abuse issues is also not as broadly defined in the military, to the extent the professional perceives a risk of harm to others or the mission. Even the logistics of scheduling medical appointments may require notification to command authorities. Notably, this exception also applies if a service member receives treatment from non-government medical professionals or facilities.
If a service member’s medical records were disclosed, it’s conceivable that an evaluation by a military medical evaluation board or physical evaluation board may be shortcoming. The determinations made by these MEBs or PEBS can bring a service member’s career to a halt, and possibly even jeopardize his or her right to military benefits.
An attorney that focuses on military law understands that challenging an incorrect PEB review generally requires the service member to prove his or her true physical and mental condition. To the extent that a HIPAA violation exists, an additional claim may be available. However, the “fruit of the poisonous tree” exclusionary rule in criminal law does not necessarily have the same application in the military. It may seem unfair to have to respond to the PEB review on the merits, especially if the review was prompted by a privacy breach, but an attorney can help a service member prepare a strong case on both fronts.
Source: Health.mil, “Military command exception,” copyright 2016, Military Health System and the Defense Health Agency