Legal commentators and others point to the extraordinary set of laws the US has enacted in the name of privacy, prohibiting the sharing of personal information about individuals. Did these laws contribute to the Virginia Tech tragedy. “OverLawyered” editor Walter Olson comments.
Ask university officials in the US why their hands are so often tied when they see a student beginning to spiral into disruptive madness and some will cite federal laws that prohibit discrimination against the mentally ill. Others will mention procedural obstacles that can make it hard to expel a youngster over anything short of a serious crime. But nearly all will circle around at some point to the extraordinary set of laws we have enacted in the name of privacy, prohibiting the sharing of personal information about individuals.
One of these laws – FERPA, otherwise known as the Buckley Amendment – is unique to students and universities. But perhaps equally far-reaching in its implications is HIPAA, the four-year-old health-privacy law, which covers the medical records not just of students but of Americans generally.
Under HIPAA, it would have been unlawful for the psychiatric hospital that treated student Cho Seung-Hui, who shot 32 people at Virginia Tech university this week, to compare notes on his therapeutic progress, or lack thereof, with his counselors or dean. So effectively did the various privacy laws bottle up information that even a Virginia Tech official tasked with the monitoring of problem students is said to have known little or nothing about Cho’s lurid history of psychotic symptoms until after the fact.
Under HIPAA’s terms, doctors and other covered persons who improperly release information about identifiable persons’ health care are subject to fines and even prison terms of up to ten years. That a disclosure is well-meaning rather than malicious is no defence: disclosures to patients’ own parents or roommates, as well as disclosures to other medical or custodial institutions, can very much trigger liability; and the exact scope of what is deemed proper disclosure is by no means precisely defined.
Unintended consequences soon blossomed, in large quantity. Frantic family members dialed emergency rooms in vain seeking confirmation that their unconscious loved ones were there. Preferring to play it safe, some hospitals removed patients’ names from doors. Clergy were ordered not to drop in on ill parishioners unless on specific request. Wider areas within clinics were closed off to unescorted visitors; Santa Claus could drop by only with a proper release form on hand for each ailing child.