Part of the role of Connecticut’s Department of Mental Health and Addiction Services is to de-stigmatize the image of mental illness, to promote understanding and to encourage treatment.
To celebrate this idea, there have been formal springtime ceremonies at Connecticut Valley Hospital in Middletown. The real names of long-anonymous patients, buried in numbered graves, are called out in a strong voice, counteracting years of neglect, shame and oblivion.
In sharp contrast, DMHAS has also been working to permanently bury the identities and treatment records of Civil War veterans it once served. Supposedly to shield people from the embarrassment of having an ancestor who was treated at a state mental health facility, in 2011 DMHAS quietly pushed for the enactment of a legislative amendment that expanded the doctor-patient privilege retroactively, where it had never existed before.
As a result, broad categories of archival records have been closed off to researchers, according to state librarian Kendall Wiggin.
The time has come to establish a new policy of clarity — one that would allow historians to access official state records of people who have been dead for many years. This would, for example, encourage research into the Civil War-era records of soldiers at Connecticut Valley Hospital, revealing more about the mental sacrifices they made in our nation’s bloodiest conflict.
There has been very little such study. In 1991, lawyer and historian Eric Dean Jr. wrote “Shook over Hell,” a pioneering 10-year analysis focusing on the emotional trauma of Civil War veterans. He compared his Civil War findings with the experiences of Vietnam veterans diagnosed with post-traumatic stress disorder, which was first officially recognized in 1980.
Dean worked in Indiana, where a 75-year limit for sealing veterans’ medical files after death gave him unrestricted access to these century-old records.
The situation is quite different in Connecticut. In 2009, with the 150th anniversary of the Civil War approaching, Central Connecticut State University historian Matthew Warshauer was about to learn this first-hand, while teaching his graduate level class on historical research. One ambitious student wanted to find out whether Civil War soldiers experienced the psychological trauma so well-documented in more recent wars.
State Library census and pension records indicated 41 veterans had been transferred to CVH in Middletown, which opened in 1868 and was initially called the Connecticut Hospital for the Insane. The veterans’ death records were also available from the Noroton Home, a Connecticut institute for soldiers and orphans, founded in 1863, that became the precursor for the Veterans Administration. Its death records showed the 41 men had suffered from a wide range of mental disorders.
To learn more details, Warshauer wanted access to CVH files. But the Freedom of Information officer inside DMHAS told Warshauer that the records would have to be redacted so actual names were not copied or used. Warshauer’s reaction? Unacceptable! That’s simply not how historians work.
When the professor filed a FOI request, the DMHAS invoked the medical records exemption, and said the historians would need permission from any living relatives. Warshauer didn’t mind trying to contact relatives and proceeding respectfully. But he wasn’t ready to give up legal rights.
With the help of another graduate student, retired insurance company lawyer James E. Brown, of Granby, the historians and FOIC lawyer Tracie Brown found caselaw stating that the medical exemption from the FOI Act only applies to the living.
The 1986 Connecticut Supreme Court case Galvan v. FOIC established that descendants did not have legal standing to invoke privacy rights on behalf of their ancestors.
Furthermore the doctor-patient exemption specifically refers to licensed physicians. The exemption couldn’t have existed until 1891, they reasoned, because that’s the first year physicians were licensed in Connecticut. The psychiatrist-patient privilege first became law in 1961.
The FOI commission agreed the historians had a right to the records, and ordered their release.
Surprisingly, DMHAS didn’t appeal. But it hadn’t stopped maneuvering.
During the 2011 legislative session, DMHAS noiselessly requested that a small amendment be added to a giant health bill. The amendment stated that every legal privilege in statutes and case law could be invoked retroactively, without time limit, to shield treatment records from FOI disclosure.
Under such a broad exemption, record keepers like Wiggin, the state librarian, could not be sure just what records were safe to disclose. He told the Reporter’s Committee for Freedom of the Press: “At the moment, we’re going to basically shut off access to quite a few categories of records.”
There is little dispute that this new exemption is as confusing as it is broad. Hastily crafted at the last minute, it did not benefit from the input of any historians, genealogists, the media, the public or the FOIC. A similar “midnight amendment” occurred again last year with a broad Newtown-inspired ban on photos and 911 tapes from all murder scenes.
The General Assembly should be ashamed of itself. It is exquisitely pernicious that measures restricting the public’s right to know are passed without the public knowing.
Things don’t have to continue this way. When all the interested parties converge, informed compromise has a chance. DMHAS commissioner Patricia Rehmer has said she is open to the idea of placing a time limit on the sealing of sensitive studies and records. For example, the National Archive collection of military records makes virtually everything available to researchers, genealogists and the public 75 years after a veteran’s death, if not earlier.
At the U.S. Department of Health and Human Services, there has been a growing recognition that a balance needs to be found between privacy and research. Last year, Warshauer wrote in the December issue of Civil War History, the agency has changed the guidelines of the Health Information Portability and Accountability Act (HIPAA) to allow release of health care files 50 years after a person’s death. This was intentionally done to help historians, genealogists and scholars.
Connecticut should not be heading backwards into the darkness here.
After a real public hearing, the General Assembly can determine a clear-cut expiration point when historical medical records are no longer sealed.