Caring for pregnant, substance-using women and their infants can present complex legal and ethical issues concerning confiden- tiality, reporting, and the custody and protection of children.
Service providers must understand and be prepared to address all aspects of these issues.
To do so, they must be trained in the areas covered by these guidelines.
This training should be developed at the Federal level and include examples that illustrate the applicability of the guidelines in a variety of environments.
The first level of training should be provided by the Federal Government to staff of State alcohol and other drug programs, maternal and child health agencies, child welfare offices, and child protective services agencies.
Once trained, these staff will be better prepared to evaluate and recommend improvements to programs serving pregnant, substance-using women.
States, in turn, should offer training to local program staff.
This training should inform service providers of new or clarified guidelines concerning the care of pregnant, substance-using women, and provide them with tools to use to document compliance with the guidelines.
An additional level of training should include those who interface with and are involved in the court process.
Judges must be a priority target group for training, and attorneys, probation officers, and other court personnel should be encouraged to participate as well.
Training at all levels must be ongoing and updated at regular intervals to ensure that current information is available.
Cross-training of health care professionals, child welfare specialists, and judges and attorneys involved in family law is highly desirable.
New training funds are needed from the Federal level to ensure compliance with these guidelines.
The following guidelines address Federal and State confidentiality and reporting regulations, training in ethical and legal issues, and protective services for children.
The Consensus Panel believes that criminal penalties should not be imposed on women based solely on their use of alcohol and other drugs during pregnancy.
In the event a substance-using woman is incarcerated or detained for a criminal offense, she should be given access to treatment services.
Furthermore, pregnancy should never be the pretext for changing sentences given to women who commit crimes.
Jurisdictions may require that authorities be notified when an infant is born drug dependent or when an infant is exposed to alcohol and other drugs at the time of birth.
When patient information is involved, treatment programs must follow Federal laws and regulations concerning the confidentiality of drug and alcohol treatment records.29 State laws vary considerably, so overall national guidelines concerning confidentiality and the reporting of patient information are not possible.
In circumstances where State laws are in conflict with Federal confidentiality regulations, the Federal regulations prevail.
All staff of alcohol and other drug treatment programs must be knowledgeable about Federal and State laws concerning confidentiality and patient records and how these laws affect their practices and the patients they serve.
Treatment staff must be trained to understand and handle any conflicts between these laws and to recognize how such conflicts affect the delivery of services in their particular communities.
Similarly, patients in alcohol and other drug treatment programs must be told about the extent of the confidentiality protection provided by law, and when this protection does not exist.
State and local laws that require maternal alcohol and other drug use and fetal drug exposure to be reported to authorities have a significant impact on women and their children.
These reports can be the impetus to remove children from their mothers' care and have them placed in protective custody or foster care.
Knowing that such a report is in the offing, some women may forego their prenatal care or the follow- up services they need.
The closer communities move toward measures that detain pregnant, substance-using women, the more punitive, detrimental, and potentially dangerous it becomes for these women and their children.
The Federal confidentiality regulations prohibit disclosure of patient information as follows:
Except under certain limited conditions, Federal confidentiality regulations prohibit the disclosure of records or other information concerning any patient in a federally assisted alcohol or drug abuse program.30
The prohibition on unauthorized disclosure applies whether or not the person seeking information already has the information, has other means of obtaining it, enjoys official status, has obtained a subpoena or warrant, or is authorized by State law.31
Any State provision that would permit or require a disclosure prohibited by the Federal rules is invalid.
However, State laws may require greater confidentiality than the Federal regulations.32
Re-disclosure of patient-identifying information is prohibited unless such disclosure is made in compliance with Federal confidentiality regulations.
Although the general rule is that patient-identifying information may not be disclosed, the regulations set out a number of conditions permitting limited disclosures with patient consent and a very few circumstances in which disclosures may be made without patient consent.
Each of these conditions or circumstances has its own requirements and limitations.
In general, permitted disclosures are those made as follows:
With the written informed consent of the patient
Pursuant to internal program communications
Pursuant to a medical emergency
In response to a court order following a court hearing in which disclosure is authorized
Pursuant to a crime at the treatment program or against program personnel
For research or audit purposes
In the course of reporting child abuse
Pursuant to a qualified service organization agreement
In response to a request for nonpatient identifying information
A variety of State confidentiality laws may affect how services are provided to pregnant, substance-using women.
These laws may control the release of medical records; limit the ability of persons to testify in court based on information obtained when providing professional services (testimonial privilege); or prohibit disclosure of information regarding specific diseases, such as HIV and drug use.
Service providers and alcohol and other drug treatment staff should consult with local counsel to determine which State confiden- tiality laws affect their practices, and develop protocols and training programs to help ensure that these laws are followed.
All individuals who provide services to pregnant, substance-abusing women must understand Federal regulations on confidentiality and receive training on State and local laws, regulations, and reporting requirements.
Providers of health care and social services include, but are not limited to, physicians, social workers, nurses, psychologists, psychiatrists, child protective service workers, teachers, child care workers, and alcohol and other drug counselors.
Providers of health care and social services must be trained to understand the differences among Federal, State, and local laws regarding confidentiality of information pertaining to alcohol and other drug treatment, medical care, mental health care, child abuse, and HIV/AIDS.
Providers of health care and social services must know the relevant reporting laws pertaining to child abuse and neglect.
This knowledge should include who is mandated to report child abuse and neglect, under what circumstances they are to report child abuse and neglect, and the penalty for not reporting such abuse and neglect.
Programs serving pregnant, substance-using women are often part of community-based organizations or health care clinics.
Staff of these programs must be aware of confidentiality laws and the right to informed consent as it relates to alcohol and other drug treatment.
Cross-training concerning confidentiality and reporting must be given to individuals who may not understand relevant laws.
This includes individuals involved in medical, legal, educational, alcohol, and other drug treatment, and social service fields.
Service providers and pregnant, substance-using women should be concerned with how courts handle patient records and the circumstances under which courts can order medical and psychiatric evaluations.
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