Because substance use disorders carry such a stigma, primary care
clinicians who screen their patients for substance abuse unavoidably intrude
on their autonomy and their privacy. Whether clinicians screen through
laboratory testing or by administering behavioral questionnaires, they
are seeking very personal information. When clinicians use this information
to suggest or urge that patients get treatment, or share this information
with others, patients may feel their autonomy threatened and their privacy
invaded.
Clinicians generally perform substance abuse screening and assessment
either to improve management of presenting conditions or to encourage patients
to accept treatment. However, patients, accustomed to clinicians' respect
for their autonomy, may not see it that way. A patient "in denial"
may not realize, or want to realize, that he has to cut back on or give
up his alcohol or other drug use, and he may view the clinician's questions
and suggestions as intrusive.
A patient may also be concerned about the social stigma that comes
with admission of a substance use problem. It is common for people with
such problems to face stigmatization and discrimination if those problems
become public knowledge. Such patients may find it difficult or impossible
to obtain coverage for hospitalization costs if an insurer or health maintenance
organization (HMO) learns that their traumatic injuries were related to
alcoholism. Or, patients' employers could take a dim view of their entering
drug treatment. Relationships with a spouse, parent, or friends may suffer.
Adverse consequences such as these may discourage patients with substance
use problems from seeking treatment.
This appendix will examine how the issues of privacy and confidentiality
affect the way primary care clinicians may screen patients for substance
use problems. The first issue discussed is the relationship between patient
autonomy, a value medicine holds dear, and the clinician's obligation to
inform and counsel his patient about the health risks of alcohol or other
drug use. A discussion of privacy of information about a patient's substance
use problems follows: How can the clinician keep accurate records and communicate
with others concerned about the patient's welfare without disclosing information
that may subject the patient to scorn, loss of employment, or problems
with insurance? This section offers specific examples of situations primary
care clinicians may encounter in connection with patients who have substance
use disorders.
Patient Autonomy and The Clinician's Mission
A clinician confronted with evidence of a patient's substance abuse
is caught between respect for his patient's autonomy and his duty to ensure
his patient's health. Should the clinician raise the issue and then drop
it at the slightest hint of resistance on the part of the patient? Or should
he intervene more forcefully -- with argument, or by involving the family?
To fulfill his ethical responsibility to his patient's health, the
clinician should do more than simply raise the issue. He should give the
patient all the relevant information, engage the patient in a discussion,
and follow up in future visits.
Ordering Laboratory Tests
Testing patients' urine for drugs is not an everyday practice in
primary care, but a clinician may want to use such a screen, especially
when treating adolescents for substance abuse problems. Must, or should,
a clinician get the patient's consent before ordering a drug screen? Such
a decision must be guided by the strictures of trust and privacy, because
the law addresses only the case of doctors reporting pregnant substance-abusing
women to child protective services or the criminal justice system. Ordinarily,
a clinician does not ask a patient to consent before she sends his urine
or blood for other testing.
However, ordering laboratory tests to screen patients for substance
abuse problems is different than screening for, say, diabetes. Patients
expect to be screened for blood sugar and cholesterol but not for alcohol
and other drugs. A patient confronted with the results of a test he did
not know about and did not consent to may feel betrayed by the clinician
and that the clinician has shown a lack of respect for his right to make
his own decisions about medical tests and care. Feeling he can no longer
trust the clinician and angry that he has been "tricked," the
patient may refuse to participate in any further discussion about his substance
use problem. In the interest of a more productive clinician-patient relationship,
the better practice is to ask the patient before running any laboratory
screens.
A second reason clinicians should get a patient's consent before
testing urine or blood for alcohol or other drugs is the patient's privacy.
If the clinician orders a test, the patient's health insurance carrier
will know about it and perhaps the result as well. The clinician's decision
to order a drug screen tells the third party payer a good deal, even if
the result is negative. The patient should decide whether he is willing
to have his insurance carrier learn this information.
A third reason is financial. The patient's third party payer may
not cover drug screens as a matter of course. The advent of managed care
has narrowed the range of tests a clinician can order on a routine basis.
If the patient's insurance or HMO will not cover the test, the patient
should have the opportunity to decide whether he is willing to pay for
the test out of his own pocket, a decision he should make before the test
is taken.
Unfortunately, there is a good chance that if the clinician consults
the patient and asks for his consent, he will refuse to agree to the test.
However, this exchange leaves the door open to further discussion with
the patient about his possible substance use problems
(see
Chapter 3).
The patient may be more open to examining his own behavior
after refusing a test than if he thought the clinician acted behind his
back. The clinician could begin the discussion by asking, in a neutral
way, why the patient does not want to have a drug screen.
Privacy and Confidentiality
Concern about privacy and confidentiality is fueled by the widespread
perception that people with substance use disorders are weak or morally
impaired. A patient whose substance use problem becomes known to her employer
may lose an expected promotion -- or her job. If she has marital problems,
information about her substance use could have an impact on divorce or
custody proceedings. Or her health insurance could be canceled.
Federal Law
The concern about the adverse effects that social stigma and discrimination
have on patients in recovery (and how those adverse effects might deter
people from entering treatment) led the Congress to pass legislation and
the Department of Health and Human Services (DHHS) to issue a set of regulations
to protect information about patients' substance abuse. The law is codified
at 42 U.S.C. §290dd-2. The implementing Federal regulations, "Confidentiality
of Alcohol and Drug Abuse Patient Records," are contained in 42 CFR
Part 2 (Vol. 42 of the Code of Federal Regulations, Part 2).
The Federal law and regulations severely restrict communications
about identifiable patients by "programs" providing substance
use diagnosis, treatment, or referral for treatment (42 CFR §2.11).
The purpose of the law and regulations is to decrease the risk that information
about individuals in recovery will be disseminated and that they will be
subjected to discrimination, which should also encourage people to seek
treatment for substance use disorders.
In most primary care settings, Federal confidentiality laws and regulations
do not apply. For many years, there was confusion about whether general
medical care settings such as primary care clinics or hospital emergency
rooms were subject to the Federal law and regulations because they provided
substance abuse diagnosis, referral, and treatment as part of their services.
In 1995, DHHS revised the definition of the kinds of "programs"
subject to the regulations, making it clear that the regulations do not
usually apply to a general medical care facility unless that facility (or
person) "holds itself out as providing, and provides, alcohol or drug
abuse diagnosis, treatment or referral for treatment" (42 CFR §2.11).2
Most primary care clinicians are not subject to the Federal rules.
Practitioners should be aware, however, that if a health care practice
includes someone whose primary function is to provide substance abuse assessment
or treatment and if the practice benefits from "Federal assistance,"3
that practice must comply with the Federal law and regulations and implement
special rules for handling information about patients who may have substance
abuse problems.4
Moreover, the fact that most primary care clinicians are not subject
to the Federal rules does not mean that they can handle information about
patients' substance use problems in a cavalier manner. Because of the potential
for damage to patients, clinicians should always handle such information
with great care.
State Law
Although Federal rules do not restrict how most primary care clinicians
gather and handle information about patients' substance abuse, there are
other rules that may limit how such information may be handled. State laws
offer some protection to medical information about patients. Most clinicians -- and
patients -- think of these laws as the "doctor-patient privilege."
Strictly speaking, the doctor-patient privilege is a rule of evidence
that governs whether a physician can be asked or compelled to testify in
a court case about a patient. In many States, however, laws offer wider
protection. Some States have special confidentiality laws that explicitly
prohibit practitioners from divulging information about patients without
consent. States often include such prohibitions in professional licensing
laws; such laws generally prohibit licensed professionals from divulging
information about patients, and they make unauthorized disclosures grounds
for disciplinary action, including license revocation.
Each State has its own set of rules, which means that the scope of
protection offered by State law varies widely. Whether a communication
(or laboratory test result) is "privileged" or "protected"
may depend upon a number of factors:
The type of professional holding the information and whether he
or she is licensed or certified by the State
The context in which the information was communicated
The context in which the information will be or was disclosed
Exceptions to any general rule protecting information
Clinicians covered by the "doctor-patient" privilege
Which practitioners are covered depends on the State within which
the clinician practices. California, which grants its citizens "an
inalienable right to privacy" in its Constitution, has what may be
the most extensive protections for medical (including mental health) information.
California law protects communications with a wide variety of professionals,
including licensed physicians, nurses, and psychotherapists (which includes
clinical social workers, psychologists, and marriage and family counselors),
as well as many communications with trainees practicing under the supervision
of a number of these professionals. A California court has held that information
given to an unlicensed professional by an uneducated patient may be privileged
if the patient reasonably believes the professional is authorized to practice
medicine.5
Other States' laws cover fewer kinds of professionals. In Missouri,
for example, protection is limited to communications with State-licensed
psychologists, clinical social workers, professional counselors, and physicians.
Even within a single State, the kind of protection afforded medical information
may vary from profession to profession. Clinicians should learn whether
any confidentiality law in the State in which they practice applies to
their profession.
Context in which the information was communicated
State laws vary tremendously in this area, too. Some States limit
protection to cover only information a patient communicates to a professional
in private in the course of the medical consultation. Information disclosed
to a clinician in the presence of a third party -- like a spouse -- is not protected.
Other States, such as California, protect all information the patient tells
the clinician or the clinician gains during examination.6
California also protects other information acquired by the clinician in
his professional capacity about the patient's mental or physical condition,
as well as the advice the clinician gives the patient.7
When California courts are called upon to decide whether a particular communication
of medical information is privileged, State law requires them to presume
that it is.
California affords even greater protection to communications between
patients and psychotherapists, a term that covers a wide range of professions.
Communications by and to the patient as well as information communicated
by a patient's intimate family members to therapists and psychiatric personnel8
are protected. California also protects information the patient discloses
in the presence of a third party or in a group setting.
Understanding what medical information is protected requires primary
care clinicians to know whether State law recognizes the confidentiality
of medical information in the many contexts in which the clinician acquires
it.
Circumstances in which "confidential" information is protected
from disclosure
Some States protect medical information only when that information
is sought in a court proceeding. If a physician divulges information about
a patient in any other setting, the law in those States will not recognize
that there has been a violation of the patient's right to privacy. Other
States protect medical information in many different contexts and may discipline
professionals who violate their patients' privacy, allow patients to sue
them for damages, or criminalize behavior that violates patients' privacy.
The diversity of State rules in this area compounds the difficulty clinicians
face in becoming knowledgeable about what rules apply to them.
Exceptions to State laws protecting medical information
Consent
All States permit health care professionals to disclose information
if the patient consents. However, each State has different requirements
regarding patient consent. In some States, consent can be oral; in others,
it must be written. States that require written consent sometimes require
that certain elements be included in the consent form or that everyone
use a State-mandated form. Some States have different consent forms with
different requirements for particular diseases.
Other exceptions
All States also require the reporting of certain infectious diseases
to public health authorities and of child abuse to child protective service
agencies, although definitions of infectious disease and child abuse vary.
And most States require health care professionals and mental health counselors
to report to the authorities threats patients make to inflict harm on others.
There are States that permit or require health care professionals to share
information about patients with other health care professionals without
the patients' consent, but some limit the range of disclosure for certain
diseases, like HIV. Most States make some provision for communicating information
to health insurance or managed care companies.
Many of the situations that primary care clinicians face daily -- processing
health claims, for example -- are covered by one of these exceptions. To fully
understand the "rules" regarding privacy of medical information,
primary care clinicians must know about the exceptions to those rules as
well. Those exceptions are generally in the statute books -- in either the
sections on evidence or the professional licensing sections, or both. The
State licensing authority as well as professional associations can usually
help answer such questions.
Strategies for Dealing With Common Situations
Charting Substance Use Information
One way for a primary care clinician to safeguard his patients' privacy
and avoid breaking the rules is to develop a charting, or recordkeeping,
system that is accurate but still protects patients' rights to privacy
and confidentiality. It's important to remember how many people could see
a patient's medical chart: the medical office staff, the insurance company
(or HMO or managed care organization [MCO]), and in the event of a referral,
another set of clinicians, nurses, clerical workers, and insurers. If the
patient is involved in litigation, and his medical or mental health is
an issue, the court will most likely require the clinician to disclose
the chart in response to a subpoena.
The Consensus Panel recommends that when documenting screening or
assessment results or flagging an issue to be raised during the patient's
next visit, clinicians use neutral chart notations or reminders that do
not identify the problem as being substance-use-related. Following are
three recordkeeping systems that comply with the stringent Federal confidentiality
regulations, protect patients' autonomy and privacy, and can be used in
the primary care setting (TIP 16, Alcohol and Other Drug
Screening of Hospitalized Trauma Patients, CSAT, 1995:9
The "minimalist" approach, which relies on the clinician
to enter only that information in the chart that is required for accuracy
and to use neutral terms wherever possible.
The "rubber band" approach, which segregates substance
abuse information in a separate "confidential" section in the
chart. Information in this section would be shared with other clinicians
only on a need-to-know basis, without being open to the view of every staff
person who picked up the chart.
The "separate location" approach, which keeps sensitive
information separate from the rest of the patient's chart. The other place
might be a locked cabinet or other similarly secure area. A "gatekeeper"
familiar with the clinician's recordkeeping system and the reasons for
the extra security would be responsible for deciding when others -- within
or outside of the office -- will have access to this information. This approach
provides, in effect, a stronger "rubber band" than that described
in the second approach.10
The push toward computerization of medical records will complicate
the problem of keeping sensitive information in medical records private.
Currently, there is protection afforded by the cumbersome and inefficient
way many, if not most, medical records make their way from a clinician
in one practice to a clinician in another. When medical records are stored
in computers, retrieval can be far more efficient. Computerized records
may allow anyone with a disk and access to the computer in which the information
is stored to instantly copy and carry away vast amounts of information
without anyone's knowledge. Modems that allow communication about patients
among different components of a managed care network extend the possibility
of unauthorized access to anyone with a modem, the password(s), and the
necessary software. The ease with which computerized information can be
accessed can lead to "casual gossip" about a patient, particularly
one of importance in a community, making privacy difficult to preserve.
Communicating With Others
One of the trickiest issues is whether and how clinicians should
communicate with others about patients' substance use problems. The Consensus
Panel suggests the clinician gather information from other sources or enlist
help for a patient struggling with recovery in several circumstances. Speaking
with relatives (including parents), doctors and other health and mental
health professionals, employers, or schools might seem at first glance
to pose no risk to a patient's right to privacy, particularly if the person
or organization approached for information referred the patient to the
clinician or the clinician is seeking to enlist help for the patient. However,
gathering information; responding to questions about a patient's problems
from a spouse, school, or employer; or making a referral to a substance
abuse treatment program can involve an explicit or implicit disclosure
to an outsider that the clinician believes the patient has a substance
abuse problem. And the clinician making such a disclosure may be inadvertently
stepping on a land mine.
Gathering information from family and others
A clinician screening or assessing a patient for substance abuse
problems may well want to ask a relative (including a parent), a previous
doctor, or a mental health provider what they have observed about the patient's
use of alcohol or drugs. Such information may confirm the clinician's judgment
that the patient needs help or may be useful in persuading a reluctant
patient that treatment is necessary. However, before going elsewhere for
information, it is best to get the patient's consent for reasons of trust,
privacy, and autonomy already discussed. And, if harm does result from
the clinician's conversation with a third party, there will be a record
that the patient consented to the communication.
Making referrals to substance abuse treatment programs
The clinician has persuaded the patient to try outpatient treatment
and knows the director of an excellent program in the immediate area. Rather
than simply picking up the phone and letting the director know she has
referred the patient, she should consult the patient about the specific
treatment facility. Though it may seem that consent to general treatment
is the same as consent to a facility, it takes very little time to get
the patient's consent, demonstrates respect for the patient, and protects
the clinician if, say, the treatment program's director is the patient's
boss's cousin or some such connection.
Communicating with employers
Suppose a clinician believes that a patient's problem requires intensive
treatment, available only in another county or a residential facility.
The patient's employer must be notified that she will be gone for a period
of time to get treatment. The patient expresses concern about being fired
if her employer learns she has a substance use problem. How should the
clinician proceed?
Clinicians should listen when patients express concern that an employer
will not be sympathetic about either the substance use problem or the decision
to enter treatment. The patient may well have an accurate picture of her
employer's attitude. If the clinician's communication to the employer directly
or indirectly discloses the patient's substance use problem and the patient
loses her job, the clinician may find himself facing an unpleasant lawsuit.
There are two ways of handling the problem -- that are best when used
together: (1) Communicate a neutral diagnosis to the employer that does
not directly or indirectly disclose the patient is entering alcohol or
other drug treatment and (2) get the patient's consent before sending the
communication.
Communications with insurers, HMOs, and other third party payers
Traditional health insurance programs offering reimbursement to patients
for clinicians' fees typically require patients to sign claim forms containing
language consenting to the release of information about their care. The
patient's signature authorizes the clinician to release such information.
While HMOs do not require patients to submit claim forms, both clinicians
and patients understand that the HMO or MCO can review clinical records
at any time and may well review records if it questions the clinician's
care.
Should the clinician rely on the patient's signed consent on the
health insurance form or the HMO contract and release what she has in her
chart (or a neutral version of that information)? Or should she consult
the patient?
The better practice is for the clinician to frankly discuss with
the patient what information she intends to disclose and the likely consequences
of the alternatives open to the patient -- disclosure and refusal to disclose.
Will the information the clinician sends explicitly or implicitly reveal
the nature of the patient's problem? Does the patient's chart contain a
substance abuse diagnosis? Once again, the clinician confronts the question
of how such information should be charted. Has she balanced the need for
accuracy with discretion and a respect for patients' privacy? Finally,
even if the chart contains explicit information about the patient's substance
use problem, can the clinician characterize the information and her diagnosis
in more neutral terms when releasing information to the third party payer?
Once the patient understands what kind and amount of information
the clinician intends to send the third party payer, he can decide whether
to agree to the disclosure. The clinician should explain that a refusal
to comply with the insurer's request for information may result in a loss
of coverage for at least some related services. If the patient expresses
concern, she should not mislead him, but confirm that once his insurer
learns he has had a substance use problem, he could well lose his insurance
coverage and be unable to obtain other coverage.11
A patient whose employer is self-insured may fear he will be fired, demoted,
or disciplined if the employer suspects he has abused alcohol or other
drugs -- and he could be right.12
The final decision should be the patient's. He may well decide to
pay out of pocket. Or he may agree to the limited disclosure and ask the
clinician to inform him if more information is requested.
As managed care becomes more prevalent throughout the country, clinicians
are finding third party payers demanding more and more information about
patients and about the treatment provided to those patients in order to
monitor care and contain costs. Clinicians need to be sensitive about the
amount and kind of information they disclose because there is a risk that
this information may be used by the insurer to deny benefits to the patient.
For example, if, in response to a demand from the insurer, the clinician
releases the patient's entire chart, the insurer may learn from the clinician's
notes that the substance abuse included the use of both alcohol and illegal
drugs. The insurer may then deny benefits, arguing that since its policy
does not cover treatment for abuse of drugs other than alcohol, it will
not reimburse treatment when abuse of both alcohol and drugs is involved.
Insurers have been known to use the information that a patient began drinking
at age 11 to deny benefits because the alcohol problem is a "pre-existing
condition." Chart notes may also contain detailed and very personal
information about family life that may be unnecessary for a third party
payer to review in order to determine whether and what kind of treatment
should be covered.
As in so many other areas involving patients' privacy, it is best
to follow two simple rules: First, keep notations and documentation as
neutral as possible while maintaining professionally acceptable standards
of accuracy. Second, consult the patient and let the patient decide whether
to agree to the disclosure.
Communicating with the legal system
If a clinician gets a call from a lawyer asking about a patient or
a visit from a law enforcement officer asking to see records or a subpoena
to testify or produce medical records, what should he or she do? As in
other matters of privacy and confidentiality, (1) consult the patient,
(2) use common sense, and (3) as a last resort, consult State law (or a
lawyer familiar with State law).
Responding to lawyers' inquiries
Say a lawyer calls and asks about Roger Smith's medical history or
treatment. As a first approach to the question, the clinician could tell
the lawyer, "I don't know that I have a patient with that name. I'd
have to check my records"13 or tell
the caller that she must consult with her patient before having a conversation
about him: "I'm sure you understand that I am professionally obligated
to speak with Roger Smith before I speak with you." It will be hard
for any lawyer to disagree with this statement.
The clinician should then ask the patient if he knows what information
the caller is seeking and whether the patient wants her to disclose that
or any other information. She should leave the conversation with a clear
understanding of the patient's instructions -- whether she should disclose
the information, and if so, how much and what kind. It may be that the
lawyer is representing the patient in a case and the patient wants the
clinician to share all the information she has. On the other hand, the
lawyer may represent the patient's employer or some other party with whom
the patient is not anxious to share information. There is nothing wrong
with refusing to answer a lawyer's questions.14
If the lawyer represents the patient and the patient asks her to
share all information, the clinician can speak freely with the lawyer.
However, if the clinician is answering the questions of a lawyer who does
not represent the patient (but the patient has consented to the disclosure
of some information), the clinician should listen carefully to each question,
choose her words with care, limit each answer to the question asked, and
take care not to volunteer information not called for.
Visits by law enforcement
A police officer, detective, or probation officer who asks a clinician
to disclose medical information about a patient or a patient's medical
records can usually be handled in a similar manner.15
The clinician can safely tell the officer, as he might a lawyer, "I'm
sure you understand that I am professionally obligated to speak with my
patient before I speak to you."16
The clinician should then speak with the patient to find out whether
the patient knows the subject of the officer's inquiry, whether he wants
the clinician to disclose information and if so, how much and what kind.
The clinician might end the conversation by asking whether there are any
particular areas the patient would prefer she not discuss with the officer.
When a law enforcement officer comes armed with a search warrant,
the answer is different. In this case, the clinician has no choice but
to hand over the records listed in the warrant.
Responding to subpoenas
Subpoenas come in two varieties. One is an order requiring a person to testify either at a deposition out of
court or at a trial. The other, known as a subpoena duces tecum, requires
a person to appear with the records listed in the subpoena. Depending upon
the State, a subpoena can be signed by a lawyer or a judge. Unfortunately,
it cannot be ignored.
In this instance, the clinician's first step should be to call Roger
Smith -- the patient about whom she is asked to testify or whose records are
sought -- and ask what the subpoena is about. It may be that the subpoena
has been issued by or on behalf of Roger's lawyer with Roger's consent.
However, it is equally possible that the subpoena has been issued by or
on behalf of the lawyer for an adverse party. If that is the case, the
clinician's best option is to consult with Roger's lawyer to find out whether
the lawyer will object -- ask the court to "quash" the subpoena -- or
whether the clinician should simply get the patient's consent to testify
or turn over her records. An objection can be based on a number of grounds
and can be raised by any party, including the person whose medical information
is sought. Often, the clinician may assert the patient's privilege for
the patient.
Conclusion
It is essential for primary care physicians to respect their patients'
autonomy and rights to privacy and confidentiality if they are to be effective
in screening and assessing patients for substance use disorders and persuading
them to cut down their use or enter treatment. In most situations, clinicians
can follow these simple rules: (1) consult the patient, (2) let the patient
decide, and (3) be sensitive to how information is charted or disclosed.
It is only as a last resort that the clinician will have to consult State
law or a lawyer.
[End Notes]
1. Margaret K. Brooks is an independent
consultant in Montclair, New Jersey.
2. The
full text of §2.11 now reads:
Program means:
(a) An individual or entity (other than a general medical care facility)
who holds itself out as providing, and provides, alcohol or drug abuse
diagnosis, treatment or referral for treatment; or
(b) An identified unit within a general medical facility which holds itself
out as providing, and provides, alcohol or drug abuse diagnosis, treatment
or referral for treatment; or
(c) Medical personnel or other staff in a general medical care facility
whose primary function is the provision of alcohol or drug abuse diagnosis,
treatment or referral for treatment and who are identified as such providers.
(See §2.12(e)(1) for examples.) 60 Federal Register 22,297 (May 5,
1995).
3.
The regulations provide that "federally
assisted" programs include:
Programs run directly by or under contract for the Federal government;
Programs carried out under a Federal license, certification, registration,
or other authorization, including certification under the Medicare Program,
authorization to conduct a methadone maintenance treatment program, or
registration to dispense a drug that is regulated by the Controlled Substances
Act to treat alcohol or drug abuse;
Programs supported by any Federal department or agency of the United States,
even when the Federal support does not directly pay for the alcohol or
drug abuse diagnosis, treatment, or referral activities;
Programs conducted by State or local government units that are supported
by Federal funding that could be (but is not necessarily) spent for the
substance abuse treatment program;
Tax-exempt programs.
42 C.F.R. §2.12(b).
4. For a full explanation of the Federal
law and regulations, see TIP 8 (Center for Substance Abuse Treatment. Intensive
Outpatient Treatment for Alcohol and Other Drug Abuse. Treatment Improvement
Protocol (TIP) Series, Number 8. DHHS Pub. No. (SMA) 94-2077. Washington,
DC: U.S. Government Printing Office, 1994) and TAP 13 (Center for Substance
Abuse Treatment. Confidentiality of Patient Records for Alcohol and Other
Drug Treatment. Technical Assistance Publication (TAP) Series, Number 13.
DHHS Pub. No. (SMA) 95-3018. Washington, DC: Government Printing Office,
1994).
5. Luhdorff v. The Superior Court of
Tulare County, 166 CA3d 485, 212 Cal. Rptr. 516 (5th District, 1985). Interestingly,
Luhdorff was a criminal case in which the prosecution sought the records
of an unlicensed social worker who interviewed the defendant, diagnosed
his problem, determined the appropriate treatment, and treated him for
3 months. The social worker was working under a licensed individual's supervision.
The defendant thought the social worker was a psychiatrist.
6. Section
451 of the California Evidence Code codifies the doctor-patient privilege.
See Grosslight v. Superior Court of Los Angeles , 42 Ca 3d 502, 140 Cal.
Rptr. 278 (1977), in which the court held that information communicated
by the parents of a minor psychiatric patient to her doctor and his secretary
was privileged, even though the parents were being sued on the theory that
they knew their child was a danger to others.
7. Note
that the breadth of the protection may vary according to the clinician's
profession.
8. Grosslight v. Superior Court
of Los Angeles , 72 Cal. App. 3d 502, 140 Cal. Rptr. 278 (1977), interpreting
Section 451 of the California Evidence Code (see endnote 5).
9. Center
for Substance Abuse Treatment. Alcohol and Other Drug Screening of Hospitalized
Trauma Patients. Treatment Improvement Protocol (TIP) Series, Number 16.
DHHS Pub. No. (SMA) 95-3041. Washington, DC: U.S. Government Printing Office,
1995.
10. The Consensus Panel for TIP 16 noted:
"Physical separation of clinical information is not unusual. Patient
charts from past years are generally kept in a separate location. Physicians
routinely request charts to be sent to them from this location so that
they can review historical clinical information about the patient. In addition,
nurses are quite accustomed to keeping some medications locked up and accessible
only to designated personnel" (TIP 16, Alcohol and Other Drug Screening
of Hospitalized Trauma Patients. CSAT, 1995, p. 76. See endnote 9).
11. Some
States prohibit insurance companies from discriminating against individuals
who have received substance abuse treatment; however, these kinds of discriminatory
practices continue. Insurance companies routinely share information about
applicants for life and disability insurance through the Medical Information
Bureau-a data bank maintained by a private organization and supported by
the industry.
12. Although Federal and/or
State law may prohibit the employer from firing the patient or from taking
other action simply because the patient has entered treatment, discriminatory
practices against recovering people continue to be a problem.
13. In
fact, in some States, depending on the clinician's profession, the identity
of patients as well as their medical records are protected. Therefore,
clinicians should find out whether disclosing a patient's name or acknowledging
that the individual about whom the lawyer is inquiring is a patient would
be considered a violation of the patient's right to confidentiality.
14.A
firm but polite tone is best. If confronted by what could be characterized
as "stonewalling," a lawyer may be tempted to subpoena the information
he is asking for and more. The clinician will not want to provoke the lawyer
into taking action that will harm the patient.
15.
The only exception to this advice would be if the clinician knew the patient
was a fugitive being sought by law enforcement. In that case, in some States,
a refusal to assist or give officers information might be a criminal offense.
16. As noted above, in those States where
the identity of patients as well as their medical records are protected,
the clinician should give a noncommittal response, such as, "I'll
have to check my records to see whether I have such a patient."
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