Since Germanwings pilot Andreas Lubitz deliberately crashed Flight 4U9525 into the French Alps on March 24, 2015, killing himself and all 149 others on board, a spotlight has been cast on the world of mental health screening for pilots, triggering debate over whether privacy laws regarding medical records should be less strict when it comes to professions that carry special responsibilities. Prior to the tragic accident, Mr. Lubitz had been treated for psychiatric illness. Regulatory agencies around the world require pilots to undergo regular physical testing, but they often expect pilots to self-report mental illnesses such as depression. No global consistency exists across the aviation industry for dealing with pilot health certification.

In light of the recent airline catastrophes involving Germanwings Flight 4U9525 and Malaysian Airline Flight MH370, many experts are now criticizing aviation regulators’ screening processes, arguing that they fall short for a profession burdened with the paramount responsibility of so many lives. Some lawmakers are even calling for airlines to have access to the medical records of all pilots, causing many to question whether the risk of a repeat of the Germanwings crash is high enough to justify a change in medical confidentiality for airline transport pilots.

Medical confidentiality in the United States is largely controlled by federal law: the Health Insurance Portability and Accountability Act (HIPAA).  HIPAA prohibits healthcare providers from disclosing a patient’s personal health information without the individual’s written authorization, or under limited circumstances expressly permitted or required by HIPAA. However, even HIPAA’s protections are outweighed by healthcare providers’ ethical obligations to disclose information when the provider has a credible basis for believing the patient poses a serious and imminent threat of harm to the public. Absent such “red flags,” a patient’s medical history remains confidential.

The American Federal Aviation Administration (FAA) requires every airline transport pilot to obtain a first-class medical certificate, which must be renewed every year if the pilot is under 40 years old, and every six months if the pilot is 40 or older. Issuance of this certificate involves a physical examination and self-reporting in an online medical questionnaire, but it does not require specific psychological testing. Concerned doctors can order pilots to undergo testing for “emotional stability and mental state.”  Yet, only when pilots are found to have mental health problems are they sent to psychiatrists or psychologists for evaluation or treatment. Current FAA regulations do not create a general exception to HIPAA’s confidentiality protections of a pilot’s medical history, but they do require a pilot to provide authorization for access to his or her records in circumstances where the Aeromedical Administrator deems them necessary in determining whether the medical standards required to hold a medical certificate are met.

The 2013 National Survey on Drug Use and Health (NSDUH) estimates that approximately one in five Americans meets the diagnosis for mental disorders as defined in DSM-IV. The current FAA medical certification system largely relies on pilots to self-declare their conditions, trusting pilots to volunteer information about mental illnesses that the illnesses themselves can cause the pilots to hide. The FAA attaches fines up to $250,000 for omitting or providing false information concealing health issues that could affect fitness to fly.  Yet, in order to disclose concerns of mental illness, a pilot may need to overcome symptoms of a disease that cause him not to disclose it, the stigma that still clings to mental illness, and the prospects of losing his job as a pilot.  Stigma led the FAA to revise its policies in 2010. Now, the FAA considers special issuance of medical certificates for pilots taking certain medications for mild to moderate depression.  Prior to the 2010 revision, disclosed use of medications prescribed to treat these conditions by law grounded pilots altogether. Such prohibitions, in turn, meant requiring pilots not to take medications to treat a mental condition that could affect public safety; or, alternatively, unlawfully to fail to disclose the consumption of a prohibited medication.

The authorization of a special issuance of medical certificate is evaluated on a case-by-case basis, and is only available to pilots taking one of four specific selective serotonin reuptake inhibitors (SSRIs): Fluoxetine (Prozac); Sertraline (Zoloft); Citalopram (Celexa); and Escialopram (Lexapro). Eligible applicants must have been clinically stable as well as on a stable dose of medication for a period of more than six (6) months, without any aeromedically significant side effects and/or an increase in symptoms. Aeromedical decision-making includes an analysis of the underlying condition and the treatment prescribed.

The 2010 policy move by the FAA attempts to change the culture and stigma attached to mental illness, and urge pilots to seek necessary treatment, thereby making the skies safer. In the aftermath of the Germanwings tragedy, questions loom large: Would the recent call for relaxed legal restrictions on disclosing mental health conditions actually prevent deaths caused by mentally ill pilots via mandated disclosure of medical information? Or would it encourage pilots to conceal information from their doctors and employers, leaving the world with some pilots determined never to seek treatment for a potential mental illness for fear of disclosure and resulting circumstances, such as losing a job?  According to some commentators, such a system would give pilots an incentive to cheat themselves out of quality healthcare, which in turn could pose danger to the flying public. These issues likely will be debated for quite some time.