You know that client confidentiality obligation lawyers have? The one that shapes how you meet with your clients, what you do online, and how hard you laugh at TV shows about lawyers? Therapists have that too. As the American Psychological Association explains, they need to guarantee confidentiality so that people will open up so the therapists can, you know, do their jobs.
So the psychiatric community was shocked last month when the Washington Post reported that the Trump administration has been using notes from immigrant minors’ therapy sessions against them in immigration court. Although this is a blatant violation of the APA’s Ethical Principles and a horrifying betrayal of vulnerable children’s trust, the Post reported that it’s not technically illegal because the therapists work for the Department of Health and Human Services, which stands in as a parent for unaccompanied immigrant minors.
“One of the big factors we consider is, are we putting the community at large at risk?” said Jallyn Sualog, deputy director for children’s programs at the relevant division of HHS, and a person who has to rationalize her choices somehow.
As a result, Democrats introduced a bill last week seeking to outlaw both HHS sharing therapists’ notes with ICE and ICE requesting them. They’ve also asked for a formal Inspector General investigation and written a couple of pointed letters. Apparently, they have a different take on responsible use of parental power.
The Washington Post story focuses on Kevin Euceda, who was 12 when his physically abusive, alcoholic grandmother died, and MS-13 gang members moved into his home. They forced him to work for them until he was 17, when he ran away because they ordered him to murder a stranger. With his older sister, he made his way from Honduras to south Texas, where he fell into the tender in loco parentis care of the Trump HHS.
Most of that information comes from conversations with Euceda’s first therapist, who told him (and probably believed) their conversations were confidential. However, she made the mistake of telling the truth to her supervisors, who used it as an excuse to transfer Euceda to a high-security detention center in Virginia that’s been accused of physical abuse and misuse of psychiatric drugs to keep kids “chemically restrained.” You know, like a good parent does. His new therapist there certified him as a victim of human trafficking, but that did not stop the Trump administration from using therapist notes to appeal all four of the immigration court decisions releasing him.
Euceda is now 20 and has spent more than 1,000 days in federal custody, with months more expected. As for HHS, Secretary Alex Azar (who has grown a beard, perhaps to signify that we are now in the evil mirror universe) told the Washington Post that this was just an oopsie that they’ve fixed. Because that’s what people do when they get caught.
Lorelei Laird is a freelance writer specializing in the law, and the only person you know who still has an “I Believe Anita Hill” bumper sticker. Find her at wordofthelaird.com.