Integration of substance abuse treatment and pretrial case
processing raises a broad array of legal and ethical issues.
In this chapter, four key sets of legal or mixed legal and ethical
issues are discussed, including:
Issues of constitutional law, including questions
related to the constitutionality of program operations under
the equal protection clause of the U.S. Constitution
Legal issues arising under Federal and State laws concerning
the confidentiality of information acquired during the course
of treatment
Ethical concerns related to the voluntariness of the defendant's
participation in treatment.
The Fourteenth Amendment to the U.S. Constitution prohibits
States from "deny[ing] to any person within [their] jurisdiction
the equal protection of the laws." "Equal protection" does not
mean that everyone must be treated in the same way. It means
that if distinctions are to be made in the way the State treats
people, then those distinctions must have a "rational relationship"
to the State's objectives or be supported by a "compelling State
interest." Distinctions may not be made on the basis of arbitrary
classifications.
Any alternative processing program that systematically excludes
a particular class of people -- such as African Americans or women -- would
clearly be in violation of the equal protection clause. Does
this mean that programs that exclude defendants who are accused
of violent offenses, as most do, are unconstitutional? And what
about programs that exclude everyone over a certain age?
Most programs that exclude defendants who have committed violent
crimes do so on a number of "rational bases." The State has
an interest in focusing its limited resources on rehabilitating
defendants who are most likely to benefit. Violent defendants
often have different or more serious problems than nonviolent
defendants. In addition, the State has an important interest
in protecting the public safety.
Programs that accept only youthful defendants are supported
by similar arguments. The State can act on the hypothesis that
youthful defendants are more likely to benefit from treatment;
treatment of youthful defendants theoretically also is more
cost-effective because if they continue to abuse drugs, it is
likely that they have longer criminal careers ahead of them.
If programs that exclude certain classes of defendants on
a reasonable basis are constitutional, what about programs that
treat "similarly situated" defendants, those in the same "class,"
differently. Two defendants who have committed exactly the
same crime may be treated quite differently: a program may offer
one defendant charged with drug possession the option of entering
treatment in lieu of criminal justice processing while denying
that option to another defendant charged with the same offense.
By the same token, a defendant who is accused of committing a
relatively minor crime may be subjected to court supervision
as long as a defendant who is accused of committing a serious
crime.
Is this "unequal" treatment unconstitutional? Probably not.
The Constitution permits the State to make distinctions between
individuals (as well as "classes" of individuals) if those distinctions
are based on reasonable criteria. Thus, treating differently
defendants who have been accused of committing the same type
of crime is acceptable if the distinction is made because of
differences in the addiction or criminal histories of the two
defendants or differences in other mitigating or aggravating
factors in their backgrounds. Treating identically defendants
who are accused of committing dissimilar crimes is acceptable
if the defendant accused of the lesser crime has a more extensive
criminal history, or if the two defendants need the same kind
of treatment, or if there are other factors that warrant similar
treatment.
Thus, defendants are usually sentenced on an individual basis,
and their backgrounds and needs are factored into the ultimate
decision. Rarely does the system require the court to treat
all defendants convicted of similar crimes in exactly the same
way. Indeed, the argument against mandatory sentencing, which
requires the judge to impose a particular sentence for an offense,
is that it is unfair precisely because it does not permit consideration
of defendants' backgrounds or of mitigating and aggravating
circumstances.
Even defendants who receive identical sentences, probation
or incarceration for identical periods of time, may be treated
differently. The justice system sometimes rewards defendants
on probation for good behavior by discharging them early from
supervision. Prison inmates may lose "good time" by violating
prison rules, which causes them to be incarcerated for longer
periods of time than those who drew the same sentences for the
same crimes, but behaved the way prison authorities wanted them
to. Few would argue that the justice system should abandon these
kinds of distinctions.
Thus, at every stage of the criminal justice system, we treat
similarly charged, similarly convicted, and similarly sentenced
defendants differently, based on their backgrounds and their
actions after their arrests.
One approach to dealing with equal protection concerns would
be to "equalize" the length of time in treatment for all defendants
who are accused of committing the same crime, but whose addictions
vary in severity. One suggestion would require the same length
of time in treatment, but vary the intensity of services. This
idea presents difficulties, however, because it requires defendants
to stay in treatment after they have complied fully, gained what
they can, and should have graduated. This raises a number of
ethical and practical issues: For defendants who should have
graduated, it means they are no longer matched to an appropriate
treatment program, but instead are being punished rather than
treated. For the treatment program, it means having a valuable
treatment slot occupied by someone who no longer needs it. Finally,
this solution does not preclude the theoretical possibility of
a constitutional challenge. The defendants who receive more
intensive services might object that they do not receive precisely
the same treatment as those who entered the less intensive program.
A second suggestion for equalizing time in treatment for all
defendants who have committed similar crimes would add components
like community service or educational requirements for those
defendants who require less time in treatment. This solution
is interesting because it does not require defendants to remain
in treatment when they no longer need it. However, problems
with this model exist as well. First, many jurisdictions already
require some defendants convicted of certain kinds of minor crimes
to perform community service. Second, adding additional requirements
to equalize the time all defendants must participate in a program
despite their different needs for treatment extends the State's
control over a group of individuals who would otherwise have
completed their obligations to the system. Third, defendants
who receive longer treatment may object that they are denied
the benefits of any ancillary educational services that the other
group received when its treatment ended.
The wiser course seems to be to acknowledge the reality that
defendants committing similar crimes may be treated differently
in a drug court program. If, before they enter the program,
full disclosure is made to defendants that substance abuse treatment
will be tailored to their needs (including whatever that may
mean in terms of intensity and length), it is unlikely that a
successful lawsuit could be brought on equal protection grounds.
A court's response to an equal protection challenge by a defendant
who has agreed in open court to participate in alternative processing
and who has acknowledged that no promises have been made regarding
the length or intensity of treatment might well be: "The court
allowed you to participate for your own benefit. If you are
not satisfied, you can always opt to leave treatment and go back
into criminal justice processing."
The Due Process Clauses of the Fifth and Fourteenth Amendments
prohibit the government from "depriv[ing] any person of life,
liberty or property, without due process of law." Due process
of law basically means that government must provide individuals
with some kind of notice and an opportunity to be heard before
it can deprive them of any right or privilege.
Does this mean that if a treatment drug court program seeks
to terminate the participation of a defendant because of noncompliance,
there must be a "due process" hearing? No, it doesn't.
The Supreme Court has held that the Due Process Clause requires
a hearing before an offender's probation or parole can be revoked
(Morrissey v. Brewer, 408 US 471 [1972] [parole]; Gagnon
v. Scarpelli, 411 US 778 ([1973] [probation]). However, similar
requirements are not ordinarily applicable to defendants in drug
courts while their cases are pending. The drug court follows
a diversion or deferred prosecution model. Procedural rights
have usually been waived allowing for summary decisions by judges.
The practice in individual drug courts vary. In the Miami
drug court model, it is the judge who makes the final decision
about termination, in open court, after a hearing at which the
defendant is represented by counsel. In the Brooklyn, New York,
Drug Treatment Alternative-to-Prison (DTAP) model, the treatment
program provides a due process hearing, in accordance with New
York State regulations. Why this difference? In Miami, the
court is an integral part of the treatment process. The defendant
is diverted directly from the courtroom and reports back to the
judge periodically. The judge has access to the defendant's
treatment records. DTAP does not involve the court in the treatment
process. Once defendants enter treatment, the court hears no
more about them unless their treatment is terminated and they
return for criminal justice processing, or they graduate and
their criminal cases are terminated.
For integration of substance abuse treatment and pretrial
case processing to be effective, information must flow between
the treatment program and the criminal justice system. Most
treatment drug court programs rely on detailed information flowing
regularly to the judge, prosecutor, and defense attorney. This
information (including the defendant's attendance record and
drug test results) enables the drug court judge to "work with"
the defendant, offering praise for good performance or criticism
(or punishment) for failure. Programs designed to integrate
substance abuse treatment with pretrial case processing cannot
work unless the treatment program can disclose information about
defendants to the criminal justice system.
Research evaluating the efficacy of these programs also requires
that substance abuse programs disclose data about their patients
to others. Policymakers considering whether to fund a program
will want to know whether it works. The long-term survival of
drug courts depends on good research, based on good data.
Although the flow of information from the substance abuse
treatment program to the criminal justice system and to the researcher/evaluator
is critical, those planning or operating programs and research
studies must keep in mind that Federal laws and regulations protect
information about all persons receiving alcohol and drug abuse
prevention and treatment services (42 U.S.C. Section 290dd-3
and ee-3 and 42 Code of Federal Regulations, Part 2).2 These laws and regulations prohibit disclosure of information
regarding patients who have applied for or received any alcohol
or drug abuse-related services, including assessment, diagnosis,
counseling, group counseling, treatment, or referral for treatment,
from a covered program. The restrictions on disclosure apply
to any information that would identify a patient as an alcohol
or drug abuser, either directly or by implication. They apply
to patients who undertake treatment as a form of alternative
processing, patients who are civilly or involuntarily committed,
minor patients, and former patients. They apply even if the
person making the inquiry already has the information, has other
ways of getting it, enjoys official status, is authorized by
State law, or comes armed with a subpoena or search warrant.
Any program that specializes, in whole or in part, in providing
treatment, counseling, and/or assessment and referral services
for patients with alcohol or drug problems must comply with the
Federal confidentiality regulations (Section 2.12(e)). Although
the Federal regulations apply only to programs that receive Federal
assistance, this category includes organizations that receive
indirect forms of Federal aid such as tax-exempt status, or State
or local funding coming (in whole or in part) from the Federal
government.
Information that is protected by the Federal confidentiality
laws and regulations may always be disclosed after the defendant
has signed a proper consent form.3 The
Federal regulations also permit disclosure without the defendant's
consent in several limited situations, including medical emergencies,
under a court's special authorizing order, and in communication
among substance abuse treatment program staff.4
Disclosures to the criminal justice partner are permissible
once a defendant has signed a criminal justice system consent
form (Section 2.35).5 An example of this
form is presented in Exhibit 8-1. This
form must be in writing and must contain each of the following
items:
The name or general description of the program(s)
making the disclosure
The name or title of the individual or organization that
will receive the disclosure
The name of the patient who is the subject of the disclosure
The purpose or need for the disclosure
How much and what kind of information will be disclosed
A statement regarding revocation of consent
The date, event, or condition upon which the consent will
expire
The signature of the patient
The date on which the consent is signed.
The requirements regarding consent are somewhat unusual and
strict but must be carefully followed. A general medical release
form, or any consent form that does not contain all of the elements
listed above, is not acceptable.
All disclosures, and especially those made pursuant to a consent
form, must be limited to information that is necessary to accomplish
the need or purpose for the disclosure (Section 2.13(a)). It
would be improper to disclose everything in a defendant's file
if the recipient of the information needs only one specific piece
of information.
The purpose or need for the communication of information must
be indicated on the consent form. Once this material has been
identified, it is easier to determine how much and what kind
of information will be disclosed, tailoring it to what is essential
to accomplish the need or purpose that has been identified.
The kind and amount of information disclosed to the criminal
justice system by a treatment program will depend on the structure
of the collaborative program. For example, in the drug court
model, the judge, prosecutor, and defense counsel see the defendant
frequently to offer words of encouragement or criticism in response
to the defendant's performance. In this model, the purpose of
the disclosure would be "to provide information about performance
in treatment" and the kind and amount of information would be
"drug test results, attendance at the program, and counselor's
assessment."
When a substance abuse treatment program that screens, assesses,
or treats criminal defendants asks relatives, doctors, employers,
or school representatives about defendants, it is making a patient-identifying
disclosure. In other words, when treatment program staff seek
information from other sources, they are letting these sources
know that the defendant is being considered for substance abuse
treatment. The Federal regulations generally prohibit this kind
of disclosure unless the patient consents.
The substance abuse treatment program can proceed in one of
two possible ways. First, if the criminal justice partner makes
the inquiries without mentioning substance abuse or treatment,
there is no disclosure of the defendant's substance abuse and
therefore no violation of the confidentiality rules has occurred.
The second way, of course, is to get the defendant's consent
to contact the relative, doctor, employer, school, health care
facility, etc.
The criminal justice system consent form must contain a date,
event, or condition upon which it will expire. The Federal confidentiality
regulations permit the criminal justice system consent to be
irrevocable until this specified date or condition occurs.6 Thus, a defendant entering treatment in lieu
of prosecution or punishment cannot prevent the court or other
agency from monitoring his or her progress (see
Exhibit 8-1.) The regulations require that the following
factors be considered in determining how long a criminal justice
system consent will remain in effect:
The anticipated duration of treatment
The type of criminal proceeding in which the defendant is
involved
The need for treatment information in dealing with the proceeding
The expected date of final disposition
Anything else the patient, program, or criminal justice agency
believes is relevant.
These rules allow programs to continue to use as a traditional
expiration condition for a consent form the phrase "when there
is a substantial change in the patient's justice system status."
Information obtained from a substance abuse treatment program
through a patient's consent cannot be redisclosed unless permitted
by the regulations (Section 2.32). The Federal confidentiality
regulations require that disclosures made with written patient
consent be accompanied by a written statement that the information
disclosed is protected by Federal law and that the person receiving
the information cannot make any further disclosure of such information.
This statement should be delivered and explained to the recipient
at the time of disclosure or earlier (see Exhibit 8-2).
Whenever possible, it is best to have a proper criminal justice
system consent form signed by the defendant before he or she
is referred to the treatment program. If that is not possible,
the treatment program should have the defendant sign a criminal
justice system consent form at his or her very first appointment.
If a program fails to have the defendant sign a criminal justice
system consent form and the defendant fails to complete the assessment
process or treatment, the program has few options when faced
with a request for information from the referring criminal justice
agency. It is unclear whether a court can issue an order under
Section 2.65 that would authorize the program to release information
about a referred defendant who has left the program in this type
of case. This is because the regulations allow a court to order
disclosure of treatment information for the purpose of investigating
or prosecuting a patient for a crime only where a crime has been
committed that is "extremely serious." Absconding from a program
generally will not meet that criterion.
Therefore, unless a consent form is obtained by the judge
or criminal justice agency or by the substance abuse treatment
program at the beginning of the assessment or treatment process,
the program could be prevented from providing any information
to the court or to another criminal justice agency that referred
the defendant.
If the defendant referred to treatment program by one court
or another criminal justice agency never applies for or receives
services from the program, that fact may be communicated to the
referring agency without patient consent (Section 2.13(c)(2))
As discussed previously in this TIP, it is essential in the
planning stages of an alternative processing program that the
criminal justice and treatment partners reach agreement about
communications between the program and the criminal justice agency.
Clear guidelines must be established: How detailed will the
program's reports be? Will the program report specific treatment
information, as is done in some drug courts, or only limited
information? And how will the criminal justice system use the
information?
These issues raise the question of fairness: For example,
will the prosecutor and court be able to use information obtained
from the substance abuse treatment program against a defendant
who fails to complete treatment? Would such use violate the
Federal laws and regulations? Finally, could a treatment program
function if the negative information it obtains in the course
of treatment could be used against a defendant at a later date?
The issue of program viability is inextricably linked with
the question of fairness. In order to provide counseling, programs
must obtain information about their patients' lives, feelings,
and thoughts. Substance abuse treatment providers hear a great
deal of negative information about their patients, whether or
not their patients are involved in the criminal justice system.
It would be virtually impossible for programs to function if
patients felt constrained about disclosing such information.
To increase the punishment of defendants, either by adding charges
for new offenses or by increasing punishment in light of newly
discovered evidence, as a result of disclosures they made while
in treatment would be both unfair and counterproductive.
Defendants should also be informed about what kind of information
will be disclosed to the court and other justice systems agencies,
how often it will be disclosed, and how it will be used. The
criminal justice system consent form signed by the defendant
should detail the kinds of information that will be disclosed
to the justice system. The Federal confidentiality regulations
also require programs to notify patients of their right to confidentiality
and to give them a written summary of the regulations' requirements.
(The regulations contain a sample notice.) The notice and summary
should be handed to patients when they begin participating in
the program or soon thereafter (Section 2.22(a)).
Computerizing the flow of information between the substance
abuse treatment provider and the courts allows the system to
react promptly to information from the treatment provider. For
example, judges with immediate access to the attendance records
and drug testing results entered by the treatment provider can
quickly reward or sanction improvements or slips in the defendant's
behavior. Computerization also reduces the number of times the
same information is gathered and recorded.
Computerization of communications between the substance abuse
program and its criminal justice partners does create some confidentiality
problems. A disclosure of protected information occurs each
time someone "accesses" a file from a computer. Unless appropriate
safeguards are built into the software, computerization can undermine
the controls on disclosure that are inherent in requiring the
patient to sign a consent form before each disclosure to a new
person or entity.
Computerization carries a risk that treatment information
entered by the substance abuse treatment provider will be obtained
by a person or entity not authorized to obtain it. Security
of computer systems with telephone links between the treatment
and justice system partners must be safeguarded.7 The treatment provider also must take care that the
information entered into the computer is limited to that which
it is authorized to disclose according to the defendant's consent
form. Finally, computerization carries the risk that information
about the defendant will remain accessible after the defendant
has left the system and the consent form has expired. Programs
planning to computerize must devise a way to delete all substance
abuse information about a defendant once his or her consent form
expires.
The Federal confidentiality regulations protect "patient identifying
information." Section 2.11 of the regulations defines this to
mean the name, address, Social Security number, fingerprints,
photograph, or similar information by which the identity of a
patient can be determined with reasonable accuracy and speed
either directly or by reference to other publicly available information.
The term does not include a number assigned to a patient by
a program, if that number does not consist of or contain numbers
that could be used to identify a patient with reasonable accuracy
and speed from sources external to the program (such as Social
Security or driver's license number).
For most treatment professionals, the issue of reporting a
patient's threat or intention to commit a crime is a troubling
one. Many professionals feel that they have an ethical, professional,
or moral obligation to prevent a crime when they are in a position
to do so, particularly when the crime is a serious one. In working
with defendants, substance abuse treatment practitioners may
face questions about their "duty to warn" someone of a patient's
threat to harm another.
A recent trend in the law requires psychiatrists and other
therapists to take "reasonable steps" to protect an intended
victim when they learn that a patient presents a "serious danger
of violence to another."
There are five ways a substance abuse treatment program participating
in alternative processing can proceed when patients threaten
to harm others or themselves.
The program can make a report to the court or other
criminal justice agency that is its partner in the program, as
long as there is a criminal justice system consent form signed
by the defendant that is worded broadly enough to allow this
sort of information to be disclosed. The criminal justice agency
can then act on the information by warning the intended victim
or notifying another law enforcement agency of the threat. However,
in doing so, the criminal justice agency must be careful that
no mention is made that the source of the information was a substance
abuse program or that the defendant is in substance abuse assessment
or treatment. (Disclosures that do not identify the defendant
as someone with a substance abuse problem are permitted. See
Section 2.12(a)(1).)
The substance abuse treatment program can go to court and
request a court order in accordance with Section 2.64 of the Federal
regulations, authorizing the disclosure to the intended victim,
or in accordance with Section 2.65, authorizing disclosure to a law
enforcement agency.8
The substance abuse treatment program itself can make a disclosure
to the potential victim or law enforcement officials that does
not identify as a patient the individual who threatens to commit
the crime. This can be accomplished either by making an anonymous
report or, for a substance abuse treatment program that is part
of a larger non-drug/alcohol entity, by making the report in
the larger entity's name.
The program can make a report to medical personnel if the
threat presents a medical emergency that poses an immediate threat
to the health of any individual and requires immediate medical
intervention (Section 2.51). Thus, for example, a program could
notify a private physician about a suicidal patient so that medical
intervention can be arranged.
If none of these options is practical, what should a treatment
program do? It is, after all, confronted with conflicting moral
and legal obligations. If a substance abuse treatment program
believes there is clear and imminent danger to a patient or a
particular other person, it is probably wiser to err on the side
of making an effective report about the danger to the authorities
or to the threatened individual.
As in other areas where the law is still developing, treatment
programs should find a lawyer familiar with the issues, who can
provide advice on a case-by-case basis. "Duty to warn" issues
also present an area in which staff training, as well as a staff
review process may be helpful.
What should a substance abuse treatment program do when a
patient tells a counselor, for example, that she intends to get
her children new clothes by shoplifting, a crime the counselor
knows she has committed many times in the past? Does the program
have a duty to tell the police? Does a program have a responsibility
to call the police (or its criminal justice partner) when a patient
discloses to a counselor that he participated in a crime some
time in the past, or during his participation in the program?
What can a treatment program do when a patient commits a crime
at the program or against an employee of the program? These
are three very different questions that require separate analysis.
A substance abuse treatment program generally does not have
a duty to warn another person or the police about a patient's
intended actions unless the patient presents a serious danger
of violence to an identifiable individual. Shoplifting rarely
involves violence, and it is unlikely that the counselor will
know which stores are to be victimized. Petty crime like shoplifting
is an important issue that should be dealt with therapeutically.
It is not something a substance abuse program should necessarily
report to the police.
Suppose, however, that a patient admits during a counseling
session that he killed someone during a robbery three years ago.
Does the program have a responsibility to report that? And is
the answer any different if the defendant admits he or she committed
a serious crime while participating in treatment as part of an
alternative processing agreement?
In a situation in which a patient has told a counselor that
he or she committed a crime in the past, there are generally
three questions the substance abuse program needs to ask as it
considers whether to make a report:
Is there a legal duty to report the past criminal activity
to the police under State law? The answer to his question
varies from State to State. In most States, however, there is
no legal duty to report a crime committed in the past to the
police.
Does State law permit a counselor to report the crime to
law enforcement authorities if he or she wants to? Whether
or not there is a legal obligation imposed on citizens to report
past crimes to the police, State law may protect conversations
between counselors of substance abuse treatment programs and
their patients and exempt counselors from any requirement to
report past criminal activity by patients. Such laws are important
to patients in substance abuse treatment, many of whom have committed
offenses. Part of these patients' therapeutic process is acknowledging
the harm they have done others. If substance abuse treatment
programs routinely reported patients' admissions of past criminal
activity to the police, their work with patients in the recovery
process would be thwarted. Laws protecting conversations between
counselors of substance abuse programs and their patients are
designed to protect the special relationship that substance abuse
counselors have with their patients, as well as the treatment
process.
State laws vary widely in the protection they accord communications
between patients and counselors. In some States, admissions
of past crimes may be considered privileged, and counselors may
be prohibited from reporting them; in others, admissions may
not be privileged. Moreover, each State defines the kinds of
relationships protected differently. Whether a communication
about past criminal activity is privileged (and therefore cannot
be reported) may depend upon the type of professional the counselor
is and whether he or she is licensed or certified by the State.
If State law requires a report (or permits one and the
program decides to make a report), how can the substance abuse
treatment program comply with the Federal confidentiality regulations
and State law? Any substance abuse treatment program that
decides to make a report to law enforcement authorities about
a patient's prior criminal activity must do so without violating
either the Federal confidentiality regulations or State laws.
A program that decides to report a patient's crime can comply
with the Federal regulations by following one of the first three
methods described above in the discussion of "Duty to Warn":
If the patient is a defendant participating in a drug
court program, the substance abuse agency can make a report to
the court or other appropriate criminal justice partner, if it
has a criminal justice system consent form signed by the patient
that is worded broadly enough to allow this sort of information
to be disclosed.
The substance abuse treatment program can make a report in
a way that does not identify the individual as a patient.
The treatment program can obtain a court order under Section
2.65 of the regulations, permitting it to make a report if the crime
is "extremely serious."
By using any one of these methods, the substance abuse program
will have discharged its reporting responsibility without violating
the Federal regulations. However, the law enforcement agency
that receives the report is prohibited by the regulations from
investigating or prosecuting a patient based on information obtained
from a substance abuse program, that is unless the court order
exception is used (42 U.S.C. Section 290 dd-3(c) and ee-3(c)
and 42 C.F.R. Section 2.12(d)(1)). Because of the complicated
nature of this issue, any program considering reporting a patient's
admission of criminal activity that occurred in the past should
seek the advice of a lawyer familiar with local law as well as
the Federal regulations. For a discussion about how programs
can deal with search and arrest warrants, see TIP 19, Detoxification
from Alcohol and Other Drugs, p. 83 (CSAT, 1995).
What should the treatment program do if a defendant it is
treating admits to committing a crime during treatment? Smooth
operation requires trust between the partners and there is nothing
more destructive of trust between the substance abuse treatment
system and the criminal justice system than misunderstanding
and disagreement on this issue.
To ensure that no misunderstandings occur, the substance
abuse treatment program and the justice system participants should
agree in writing about whether criminal activity will be reported
and, if so, what kinds of activity. They should decide how much
discretion the program will use in dealing with criminal activity
as a therapeutic issue.
In coming to an agreement on this issue, the substance abuse
treatment program and the criminal justice system must balance
the goal of public safety with the goal of individual recovery.
Those concerned with public safety will generally advocate drawing
the line at a point that requires greater reporting of criminal
activity by the treatment program. Those concerned with the effectiveness
of treatment programs may argue that reporting of criminal activity
must be limited if defendants are to continue to communicate
freely in recovery.
Wherever the line is drawn, it is essential that the defendants
participating in a drug court program be informed that their
admissions of criminal activity committed during treatment will
be reported. The criminal justice system consent form that defendants
sign should make clear that certain kinds of ongoing criminal
activity will be reported promptly to the court and/or prosecutor.
It is important to recognize that the Federal regulations
strictly prohibit any investigation or prosecution of a patient
based on information obtained from a substance abuse treatment
program unless the Section 2.65 court order exception is used (42 U.S.C.
Sections 290 dd-3 and ee-3 and 42 C.F.R. Section 2.12(d)(1)). For this reason,
those creating programs should consider providing treatment providers
with the capacity to apply for a court order under Section 2.65 of the
Federal regulations in cases where patients commit serious crimes.
All that is required is a model set of legal papers that the
program can submit to the appropriate court on a moment's notice.
This will permit prompt reporting of crimes that threaten public
safety and that call for separate investigation and prosecution.
When a patient has committed or threatens to commit a crime
on treatment program premises or against program personnel, the
regulations permit the treatment program to report the crime
to a law enforcement agency or to seek its assistance. In such
a situation, without any special authorization, the program can
disclose the circumstances of the incident, including the individual's
name, address, last known whereabouts, and status as a patient
at the program (Section 2.12(c)(5)).
Chapter 6 discussed evaluation efforts that
can be helpful in assessing the effectiveness, operations, and
impact of programs integrating substance abuse and pretrial case
processing. Because research on criminal justice or substance
abuse treatment programs usually entails the gathering of information
about individual clients, there are a number of confidentiality
regulations and procedures that must be followed. This section
offers guidelines for following these regulations when conducting
research on these types of programs.
Research about and evaluation of the efficacy of programs
is essential if existing ones are to continue to receive funding
and if new programs are to be developed. The Federal confidentiality
regulations provide three ways for substance abuse treatment
programs to share information with researchers.10
The regulations permit programs to give researchers
access to information about patients when no patient identifying
information is revealed.
The regulations permit programs to give researchers patient
identifying information without patients' consent when certain
criteria are met.
Researchers may also obtain information that is protected
by the Federal confidentiality regulations if patients sign proper
consent forms.
The Federal regulations permit programs to disclose information
about patients if the program reveals no patient identifying
information (Section 2.12(a)(1)). "Patient identifying information"
is information that identifies specific individual as an alcohol
or drug abuser. Thus, a program can give researchers aggregate
data about its population or some portion of its population.
For example, a program could tell a researcher that during the
past year, 42 patients completed treatment, 67 dropped out in
less than 6 months, and 25 left between 6 and 12 months.
The Federal confidentiality regulations permit programs to
disclose patient identifying information to researchers, auditors,
and evaluators without patient consent, providing that certain
safeguards are in place (Section 2.52; Section 2.53).
Research. Substance abuse treatment programs can disclose
patient-identifying information to persons conducting "scientific
research" if the treatment program director determines that the
researcher is qualified to conduct the research; has a protocol
under which patient identifying information will be kept confidential
in accordance with the regulations' security provisions (see
Section 2.16); and has provided a written statement from a group
of three or more independent individuals (such as an Institutional
Review Board) that have reviewed the protocol and determined
that it protects patients' rights. Researchers are prohibited
from identifying any individual patient in any report or otherwise
disclosing any patient identities except back to the program.
Audit and evaluation. Federal, State, and local government
agencies that fund or are authorized to regulate a substance
abuse treatment program, private entities that fund or provide
third party payments to a program, and peer review entities performing
a utilization or quality control review may review patient records
on the program's premises in order to conduct an audit or evaluation.
11 Any person or entity that reviews patient
records to perform an audit or conduct an evaluation must agree
in writing that it will use the information only to carry out
the audit or evaluation and that it will redisclose patient information
only back to the program; in accordance with a court order to
investigate or prosecute the program (Section 2.66); or to a
government agency overseeing a Medicare or Medicaid audit or
evaluation (Section 2.53(a), (c), (d)). Any other person or
entity who the program director deems qualified to conduct an
audit or evaluation and who agrees in writing to abide by the
restrictions on redisclosure can also review patient records.
Researchers can also obtain patient identifying information
if the patient has signed a valid consent form that has not expired
or been revoked (Section 2.31). This consent form differs from
the criminal justice system consent form, in two respects(see Exhibit 8-3). First, the defendant may revoke the consent
at any time and the consent form must contain a statement to
this effect. (However, if a program has already given information
to a researcher prior to the revocation, it need not try to retrieve
the information it has already disclosed.) Revocation by the
patient need not be in writing.
Second, the consent form must contain a date, event, or condition
upon which it will expire if not previously revoked. Section
2.31(a)(9) provides that the consent must "last no longer than
reasonably necessary to serve the purpose for which it is given."
Research that follows patients for any period of time after
they leave treatment presents a special challenge. Under the
Federal regulations, no information that the researcher or evaluator
gained from the substance abuse treatment program with the patient's
consent or through the research, audit, and evaluation exceptions
may be disclosed to anyone else. Yet the researcher must locate
the patient in order to collect followup data.
To ensure that patients can be located after they leave treatment,
researchers sometimes ask for the names of persons with whom
the patients are likely to have continued contact. Making inquiries
of these persons in order to locate a former patient might seem
at first glance to pose no risk to a patient's right to confidentiality.
However, confidentiality is just as essential in these types
of communications. For example, if someone from a research entity
called a former patient's relative or friend to locate the former
patient, the fact he or she had been in treatment might well
be revealed. The Federal regulations clearly prohibit this kind
of disclosure without the patient's consent. Thus researchers
and evaluators trying to locate a patient must do so without
disclosing to others any information about the patient's connection
to substance abuse treatment or they must obtain the patient's
consent to do so.
If followup contact is attempted over the telephone, the caller
must ascertain that he or she is indeed talking to the patient
before identifying himself or herself or mentioning a connection
to the substance abuse treatment program. The program (or research
agency) may form another entity, without a hint of its substance
abuse focus in its name (for example, Health Research, Inc.),
that can contact former patients without worrying about disclosing
information simply by giving its name. However, the representative
of such an entity calling former patients still must be careful
that the patient is on the line before revealing any connection
to the program. It is a good idea for the research entity to
have a set of scripted answers that the caller can use when questioned
about the purpose of the inquiry. If followup is to be done by
mail, the return address should not disclose any information
that could lead someone to conclude that the addressee was in
treatment.
Research or evaluation that collects data about patients from
collateral sources raises a similar issue to that raised by followup
with patients themselves. How can an inquiry be made of relatives
(including parents), employers, schools, or social welfare agencies
without violating the Federal regulations?
There are two ways to approach this problem. First, the researcher
can structure the data-gathering to avoid revealing that the
patient was in treatment. To accomplish this, the name of the
entity that conducts the research must be neutral, revealing
nothing about a substance abuse connection. The questions asked
of the collateral sources must also be phrased so that they offer
those sources no information that would directly or implicitly
link the patient with substance abuse or treatment.
The second way a researcher can gather information from collateral
sources is to obtain the patient's consent to disclose to the
collateral source the fact that the patient was in treatment
for substance abuse. The special consent form required by Section 2.31
of the regulations must be used. As outlined above, this form
must include the purpose of the disclosure, in this instance,
research, and how much and what kind of information will be disclosed,
in this instance, the fact that the patient was in substance
abuse treatment. The form also must include an expiration date
and a statement that consent can be revoked at any time.
Using a consent form to gather information from collateral
sources may require more work initially, but it provides more
freedom to the researcher. With consent forms signed by patients,
the researcher may ask questions about current alcohol or other
drug use. However, he or she still must take care to reveal
only the limited information allowed by the consent form. The
researcher should have a system to keep track of the expiration
dates of the consent forms.
If a researcher codes patients' names to protect their identities,
can some of the intricate rules of the Federal confidentiality
regulations be disregarded? It depends. As noted above, the
Federal regulations protect "patient identifying information."
If a researcher can code patients' names so that the number
created for each patient cannot be "used to identify a patient
with reasonable accuracy and speed from sources external to the
program," the researcher need no longer be concerned with safeguarding
information about the patient.
One of the concerns sometimes raised about treatment drug
courts is that they "force" the defendant into treatment by offering
a choice between treatment and conventional prosecution that
would be likely to result in more onerous restrictions on the
defendant's liberty. Critics contend that coerced treatment
is unethical and, on a more pragmatic note, may also add that
treatment, which is supposed to help empower people, is unlikely
to be successful if the defendant did not freely choose to participate.
One response to this criticism is that it is based on a false
premise, in the case of defendants who are in the pretrial stages
of criminal case processing. As noted in Chapter
1, a pretrial defendant cannot be compelled to participate
in any real treatment program. The decision about participation
is the defendant's alone. It is a decision that should ordinarily
be made after consultation with a defense lawyer who can explain
the legal situation to the defendant and help protect all of
the defendant's legal rights.
A second response is one that, at least in some instances,
defendants may choose the treatment option because it appears
less onerous than conventional prosecution. In that sense, there
may be an element of "coercion" underlying the defendant's decision
to enter treatment. However, it is common for substance abusers
to enter treatment not simply because they want to stop abusing
drugs but because someone, a spouse, an employer, a doctor, or
another significant figure, has given them to an ultimatum --
obtain treatment "or else." The possibility of a return to conventional
prosecution is the justice system's "or else" for programs that
integrate substance abuse treatment and pretrial cases processing.
Furthermore, treatment has been proven to be more effective if
the client stays with it for more than 90 days, so the "coercion"
actually improves the substance abusers' chances of overcoming
their addiction or related problem.
The authority of the court and/or the prosecutor's office
to resume conventional prosecution in the case that a defendant
fails to comply with the program's conditions is undoubtedly
an important incentive for keeping defendants in treatment, particularly
at the outset of a treatment regimen. Treatment is rarely an
easy or comfortable experience, and the dropout rates of many
substance abuse treatment programs are high.
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