Making appropriate screening, assessment, and treatment available to people with alcohol and other drug (AOD) abuse problems is a responsibility of the courts, correctional systems, and treatment programs. Coordination among these systems raises a number of important ethical and legal issues including:
The responsibility of the systems to actively advocate for more AOD abuse treatment services
The guidelines used to allocate treatment slots
The need to avoid overzealous participation by law enforcement in the "recruitment" of potential clients for treatment
The courts' responsibility to determine the effectiveness of mandated treatment
The need to protect the confidentiality rights and other rights of criminal justice clients in treatment.
It is the ethical responsibility of treatment programs and is in the best interests of criminal justice programs and the courts to advocate for the provision of additional funding for treatment programs for AOD-involved offenders. Greater coordination between treatment and criminal justice and the use of more comprehensive assessment processes will lead to the identification of greater numbers of people who need AOD treatment. However, assessment is an intrusive process that should be conducted only if it results in the provision of appropriate services.
The conditions in jails and prisons often produce severe limitations to good therapeutic practice. When treatment programs are developing working agreements for coordination with criminal justice agencies, they may find it appropriate to advocate for the placement of treatment services in a separate unit within criminal justice facilities for those AOD abusers whom the courts will not release to community-based treatment.
As the assessment of AOD abuse problems among the criminal justice population increases, criminal justice clients may gain access to treatment slots at the expense of other individuals in the community who require treatment. Because the prison population is predominantly male, it is possible that more men, and fewer women, will have access to treatment. Ideally, however, the judicial emphasis on treatment will result in an increase among the States for support of treatment for all who need it.
While criminal justice and treatment programs have a responsibility to coordinate their work and to serve as advocates for increased treatment services, the effect of their efforts should not be to increase the States' role in restricting individual freedoms. That is, the purpose of linking systems is not to change law enforcement practices, but to offer treatment services to those already identified and processed under current applications of the law. It would be inappropriate for the criminal justice and treatment systems to work so intimately that the police identify and arrest people with AOD abuse problems who would not otherwise have come under the purview of the criminal justice system.
While an expansion of available treatment services is desirable, in most cases, treatment programs that provide services to criminal justice clients must set priorities for the allocation of an inadequate number of treatment slots. In doing so, treatment programs should give priority to those individuals who are ready to benefit from treatment. For the purpose of setting priorities, criminal justice clients with AOD abuse problems can be grouped into four categories:
Young people who have been abusing AODs for a brief period of time and have not experienced serious negative consequences of AOD abuse.
Individuals who have had AOD problems for 5 or more years and have experienced negative consequences, but have not yet "hit bottom," either in their AOD experiences and personal lives, or in their involvement with the criminal justice system.
Individuals whose AOD abuse has caused a personal crisis that could motivate them to participate in treatment. This crisis may be the destruction of a personal relationship, the onset of a life-threatening stage of the addiction process, the loss of employment, or a judge's warning that the individual will face lengthy incarceration if brought into court for another criminal offense.
Career criminals with AOD abuse problems.
Clinical research suggests that clients in the first and third categories are the most amenable to treatment: the former because they are in the early stages of their AOD-abusing careers, and the latter because they are more likely to be motivated to participate actively in treatment.
Focusing treatment resources on clients who are amenable to treatment has additional advantages. Early treatment can prevent the individual's involvement in future AOD-related crime. The needs of new offenders for education, employment, and other auxiliary services are not always as intensive as the needs of people whose lives have been devastated by AOD abuse problems.
Clients in the first and third groups -- young people who have not experienced serious consequences and individuals who can be motivated to be treated because of an AOD-related crisis -- should perhaps be the primary targets for assessment and services. However, it is also important to provide a continuum of services to all AOD-abusing offenders. These services might emphasize education and motivation with the goal of preparing offenders to enter treatment.
Staff of AOD abuse treatment programs serving criminal justice populations should be aware of legal and ethical issues that affect program operations. Of primary concern is confidentiality: the protection of the right to privacy.
For example, staff members of a program that provides assessment and treatment placement services are often interested in seeking information about the offenders they screen from other sources, such as family, employers, and mental health providers. How can the program approach these sources and at the same time protect the offender's right to privacy? How can the agencies that are concerned with or charged with the offender's welfare communicate with each other about the offender's assessment or progress in treatment without violating the confidentiality rules? Are there special rules for programs operating in the criminal justice area? If the offender is threatening harm to him- or herself or another person, can the program call the authorities? This section attempts to answer these questions and is divided into several subsections.
The first subsection provides an overview of the Federal law that protects the right to privacy of any person, including an offender, when that person is seeking or receiving AOD abuse assessment or treatment services.
The second subsection is a detailed discussion of the rules regarding the use of consent forms to get an offender's permission to release information about seeking or receiving AOD services.
The third subsection reviews the rules for communicating with others about issues concerning an offender involved with AOD assessment or treatment services (including how diverse agencies can communicate with each other and warn others of an offender's threats to harm).
The fourth subsection is a discussion about other kinds of exceptions to the general rules that prevent disclosure of information about persons involved with AOD abuse assessment or treatment services -- such as reporting crimes on program premises or against program personnel.
The final subsection includes several points concerning an offender's right to confidential services and the need for programs to obtain legal assistance.
Two Federal laws and a set of regulations guarantee the strict confidentiality of information about persons -- including offenders -- receiving AOD abuse prevention, assessment, and treatment services.1 These laws and regulations are designed to protect patients' privacy rights in order to attract people into treatment. The regulations restrict communications more tightly, in many instances, than either the doctor-patient or the attorney-client privilege. Violating the regulations is punishable by a fine of up to $500 for a first offense or up to $5,000 for each subsequent offense. (§ 2.4).2 Some may view these Federal regulations governing communication about the offender and protecting patients' privacy rights as an irritation or a barrier to achieving program goals. However, most of the nettlesome problems that may crop up under the regulations can easily be avoided by planning ahead. Familiarity with the requirements of the regulations will ease communication. It can also reduce the confidentiality-related conflicts among the treatment program, the patient, and the criminal justice agency to a few relatively rare situations.
Any program that specializes, in whole or in part, in providing treatment, counseling, and/or assessment and referral services for offenders with AOD problems must comply with the Federal confidentiality regulations (42 C.F.R. § 2.12(e)). Although the Federal regulations apply only to programs that receive Federal assistance, this assistance includes indirect forms of Federal aid such as tax-exempt status, or State or local government funding coming (in whole or in part) from the Federal Government.
Coverage under the Federal regulations does not depend on the way a program labels its services. Calling itself a "prevention program" or "assessment program" does not excuse a program from adhering to the confidentiality rules. The kind of services actually provided, not the label, determines whether the program must comply with the Federal law.
The Federal confidentiality laws and regulations protect any information about an offender if the offender has applied for or received any AOD abuse-related services from a program that is covered under the law. Services applied for or received can include assessment, diagnosis, individual counseling, group counseling, treatment, or referral for treatment.3 The restrictions on disclosure apply to any information that would identify the offender as an AOD abuser, either directly or by implication. The general rule applies from the time the offender makes an appointment. It also applies to former clients or patients. The rule applies whether or not the person making an inquiry already has the information, has other ways of getting it, has some form of official status, is authorized by State law, or comes armed with a subpoena or search warrant.
Information that is protected by the Federal confidentiality regulations may always be disclosed after the offender has signed a proper consent form.
The regulations also permit disclosure without the offender's consent in several situations, including medical emergencies, program evaluations, and communication among staff.
The most commonly used exception to the general rule prohibiting disclosures is for a program to obtain the offender's consent. The regulations provide for two different forms of consent for mandated criminal justice clients (§§ 2.31 and 2.35). For communications between a program and the person or entity within the criminal justice system that is referring or monitoring the offender's compliance with assessment or treatment, the program should use the special criminal justice system consent form (Exhibit 6-1). For all other consented disclosures, the program should use the general consent form authorized by the regulations (Exhibit 6-2). The regulations' requirements regarding consent are somewhat unusual and strict, and must be carefully followed.
Most disclosures are permissible if an offender has signed a valid consent form that has not expired or been revoked (§ 2.31).4
A proper consent form must be in writing and must contain each of the items contained in § 2.31, as follows:
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 that the patient may revoke (take back) the consent at any time, except to the extent that the program has already acted on it
The date, event, or condition upon which the consent expires, if not previously revoked
The signature of the patient
The date on which the consent is signed (§ 2.31(a)).
A general medical release form, or any consent form that does not contain all of the elements listed above, is not acceptable. (See sample consent form in Exhibit 6-2.) A number of items on this list deserve further explanation and are discussed under the bullets below: the purpose of the disclosure and how much and what kind of information will be disclosed, the offender's right to revoke the consent, the expiration of the consent form, the required notice against re-releasing information, and agency use of the form.
The purpose of disclosure and of the type and amount of information are closely related. 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 (§ 2.13(a)). It would be improper to disclose everything in an offender's file if the recipient of the information only needs one specific piece of information.
In completing a consent form, it is important to determine the purpose or need for the communication of information. Once this 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.
As an illustration, if a program is assessing an offender's treatment needs and seeks records from a mental health provider, the purpose of the disclosure would be "to obtain mental health treatment records to complete the assessment." The disclosure would then be limited to a statement that "John Doe (the offender) is being assessed by the XYZ Program." No other information about John Doe would be released to the mental health provider.
The general consent form authorized by the Federal regulations permits the offender to revoke consent at any time, and the consent form must include a statement to this effect. This is a key difference between the general consent form being discussed here and the criminal justice system consent form, which does not permit revocation (see below). Revocation need not be in writing. If a program has already made a disclosure prior to the revocation, the program has acted in reliance on the consent -- in other words, the program was relying on the consent form when it made the disclosure. Therefore, the program is not required to try to retrieve the information it has already disclosed.
The regulations state that "acting in reliance" includes the provision of services while relying on the consent form to permit disclosures to a third-party payer. (Third-party payers are health insurance companies, Medicaid, or any party that pays the bills other than the patient's family or the treatment agency.) Thus, a program can bill the third-party payer for past services provided before the consent was revoked. However, a program that continues to provide services after a patient has revoked a consent authorizing disclosure to a third-party payer does so at its own financial risk.
The form must also contain a date, event, or condition on which consent will expire if not previously revoked. A consent must last "no longer than reasonably necessary to serve the purpose for which it is given" § 2.31(a)(9). If the purpose of the disclosure can be expected to be accomplished in 5 or 10 days, it is better to fill in that amount of time rather than a longer period or to have all consent forms uniformly expire in 60 or 90 days.
The consent form does not need to contain a specific expiration date, but may instead specify an event or condition. For example, if an offender has been placed on probation at school or work on the condition that she or he attend counseling at the program, a consent form should be used that does not expire until the completion of the probation period. Or, if an offender is being referred to a specialist for a single appointment, the consent form should provide that it will expire after he or she has seen "Dr. X."
Once the consent form has been properly completed, there remains one last formal requirement. Any disclosure made with written patient consent must be accompanied by a written statement that the information being disclosed is protected by Federal law and that the person receiving the information cannot make any further disclosure of such information unless permitted by the regulations (§ 2.32). This statement, not the consent form itself, should be delivered and explained to the recipient at the time of disclosure or earlier. (See Exhibit 6-3.)
The prohibition on redisclosure is clear and strict. Those who receive the notice are prohibited from rereleasing information except as permitted by the regulations. (Of course, an offender may sign a consent form authorizing such a redisclosure.)
The fact that an offender has signed a proper consent form authorizing the release of information does not force a program to make the proposed disclosure, unless the program has also received a subpoena or court order (§§ 2.3(b); 2.61(a)(b)). The program's only obligation is to refuse to honor a consent that is expired, is deficient, or otherwise known to be revoked, false, or invalid (§ 2.31(c)).
In most cases, the decision whether to make a disclosure pursuant to a consent form is within the discretion of the program unless State law requires or prohibits disclosure once consent is given. In general, it is best to follow this rule: Disclose only what is necessary, for only as long as is necessary, keeping in mind the purpose of the communication.
Programs assessing and treating offenders who are mandated into assessment or treatment must also follow the confidentiality rules that generally apply to AOD abuse programs. However, some special rules apply when an offender comes for assessment or treatment as an official condition of probation, sentence, dismissal of charges, release from detention, or other disposition of any criminal proceeding, and information is being disclosed to the mandating agency.
A consent form (or court order) is still required before any disclosure can be made about an offender who is mandated into assessment or treatment. However, the rules concerning the length of time that a consent remains valid are different. Also, a "criminal justice system consent" cannot be revoked before its expiration event or date. Specifically, 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 offender is involved
The need for treatment information in dealing with the proceeding
When the final disposition will occur
Anything else the patient, program, or criminal justice agency believes is relevant.
These rules allow programs to continue to use a traditional expiration condition for a consent form that once was the only one allowed -- "when there is a substantial change in the patient's justice system status." This formulation appears to work well. A substantial change in status occurs whenever the offender moves from one phase of the criminal justice system to the next. For example, if an offender is on probation, there would be a change in criminal justice status when the probation ends, either by successful completion or revocation. Thus, the program could provide an assessment or periodic reports to the probation officer monitoring the offender, and could even testify at a probation revocation hearing if it so desired, since no change in criminal justice status would occur until after that hearing.
As for the revocability of the consent (the rules under which the offender can take back his or her consent), the regulations allow the consent form to state that consent cannot be revoked until a certain specified date or until a particular condition occurs. The regulations permit the criminal justice system consent form to be irrevocable so that an offender who has agreed to enter treatment in lieu of prosecution or punishment cannot then prevent the court, probation department, or other agency from monitoring his or her progress. Note that although a criminal justice system consent may be made irrevocable for a specified period of time, its irrevocability must end no later than the final disposition of the criminal proceeding. Thereafter, the offender may freely revoke consent. (See Exhibit 6-1.)
Several other considerations relating to criminal justice system referrals are important. First, any information that one of the eligible criminal justice agencies receives from a treatment program can be used by that justice agency only in connection with its official duties with respect to a particular criminal proceeding. The information may not be used in other proceedings, for other purposes, or with respect to other individuals (§ 2.34(d)).
Second, whenever possible, it is best to have the judge or referring agency require that a proper consent form of the criminal justice system be signed by the offender before he or she is referred to the treatment program. If that is not possible, the treatment program should have the offender sign a criminal justice system form at his or her very first appointment. With a proper signed form from the criminal justice system, the AOD program can communicate with the referring agency even if the offender appears for assessment or treatment only once. This avoids the problems that can arise if an offender mandated into assessment or treatment does not sign a consent form and leaves before the assessment or treatment has been completed.
If a program fails to have the offender sign a criminal justice system form and the offender fails to complete the assessment process or treatment, the treatment program has few options when faced with a request for information from the referring criminal justice agency. The program could attempt to locate the offender and ask him or her to sign a consent form, but that, of course, is unlikely to happen. And there is some question whether a court can issue an order to authorize the program to release information about a referral who has left the program in this type of case. This is so 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 the crime was "extremely serious," and a parole or probation violation generally will not meet that criterion.
Therefore, unless a consent form is obtained by the judge or criminal justice agency or by the treatment program at the very beginning of the assessment or treatment process, the program may end up in a position where it is prevented from providing any information to the criminal justice agency that referred the offender.
If the offender referred by a criminal justice agency never applies for or receives services from the program, that fact may be communicated to the referring agency without patient consent (§ 2.13(c)(2)). But once an offender even makes an appointment to visit the program, consent or a court order is needed for any disclosures.
Finally, when a treatment program decides to establish an ongoing relationship with a criminal justice system agency, it is best to have a complete discussion about the objectives of each partner, the expectations each partner has about the obligation of the other, and communications between the treatment program and the criminal justice agency. For programs treating offenders, two crucial issues include who will make certain decisions and what kinds of information will be reported. For example, is it the program or the criminal justice agency that will decide when an offender's relapse into AOD use is a treatment issue or a violation of the conditions of probation? How detailed will the program's reports to the criminal justice agency be? Matters such as these should be resolved between the program and criminal justice agency before problems arise in individual cases. A memorandum of understanding or letter of agreement should be drafted to set forth the rules decided upon.
Given these rules regarding consent, consider the questions introduced at the beginning of this chapter: How can programs seek information from collateral sources about offenders they are assessing? How can the many diverse criminal justice and treatment agencies effectively communicate without violating the Federal rules? Do programs have a duty to warn others of threats by offenders, and if so, how do they communicate the warning?
Making inquiries of employers, schools, doctors, and other health care entities might, at first glance, seem to pose no risk to an offender's right to confidentiality. But it does.
When a program that screens, assesses, or treats offenders asks an employer, physician, family member, or mental health professional to verify information it has obtained from the offender, it is making a patient-identifying disclosure that the offender has sought its services. In other words, when program staff seek information from other sources, they are letting these sources know that the offender has asked for AOD abuse services. The Federal regulations generally prohibit this kind of disclosure unless the offender consents.
How then is a screening or assessment program to proceed? The easiest way is to get the offender's consent to contact the employer, family member, school, health care facility, etc. Another method involves the program's asking the offender to sign a consent form that permits it to make a disclosure for purposes of seeking information from collateral sources to any one of a number of entities or persons listed on the consent form. Note that this combination form must still include "the name or title of the individual or the name of the organization" for each collateral source the program may contact. Whichever method the program chooses, it must use the general consent form, not the special criminal justice system consent form.
Programs performing assessments of offenders mandated to AOD services need to be able to communicate with the referring criminal justice agency for a brief span of time -- long enough to perform the assessment, write a report, and make a presentation to the court or agency. Programs performing assessments should have the offender sign a criminal justice system consent form that expires after the offender's next change in criminal justice status.
For example, suppose the offender has been convicted of a crime and has not yet been sentenced, but is being considered for probation. The program performing the assessment (Program A) should make sure that the offender signs a criminal justice system consent form that expires after the offender's sentencing. In that way, Program A is assured of being able to continue communicating with the agency that referred the offender (whether it be the court or probation department) until a final decision has been reached. Thereafter, Program B, the agency to which the offender is assigned for his or her mandated treatment, should have the offender sign a second form permitting communication with the referring criminal justice agency until the period of probation is completed -- either successfully or through revocation proceedings.
Now, suppose that the agency in which the offender has been placed for treatment (Program B) wants to see the assessment, which was done by a different program (Program A). How can Program B get a copy?
In this example, a change in criminal justice status has occurred: the offender has been sentenced. Therefore, Program B must obtain the offender's consent to get a copy of the assessment report. The assessment report prepared by Program A may well be a part of the offender's criminal justice record maintained by the probation department. But it is still protected by the Federal regulations and cannot be released to Program B -- or anyone else -- without the offender's consent once his or her criminal justice status has changed.5
If Program B needs the assessment report prepared by Program A, it should have the offender sign consent forms permitting it to ask Program A for the report (since Program A has now become a collateral source) and permitting Program A to release the report to Program B.
As noted above, Program B must also have the offender sign a criminal justice system consent form permitting it to have ongoing communications with the criminal justice agency that mandated the offender into treatment. All other communications by Program B with the outside world -- including other criminal justice agencies -- must be dealt with on an individual basis: either by consent or by ensuring that the proposed disclosure falls within one of the narrow exceptions permitted by the Federal regulations. These same issues must be thought through when an offender is treated for AOD abuse in a jail or prison and is then referred to aftercare at a community-based program.
For most treatment professionals, the issue of reporting a patient's threat to harm another or 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 with respect to serious crime.
There has been a developing trend in the law to require 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." This trend started with the case of Tarasoff v. Regents of the University of California, 17 Cal.3d 425 (1976), in which the California Supreme Court held a psychologist liable for money damages because he failed to warn a potential victim his patient threatened to kill, and then did so. The court ruled that if a psychologist knows that a patient poses a serious risk of violence to a particular person, the psychologist has a duty "to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances."
While the Tarasoff ruling, strictly speaking, applies only in California, courts in a number of other States have followed Tarasoff in finding therapists liable for money damages when they failed to warn someone threatened by a patient. Most of these cases are limited to situations where patients threaten a specific identifiable victim, and they do not usually apply where a patient makes a general threat without identifying the intended target. States that have enacted laws on the subject have similarly limited the duty to warn to such situations.
If an offender's counselor thinks the offender poses a serious risk of violence to someone, he or she may well have a duty to warn either the potential victim or the police. The question is, can the program make a report without violating the Federal regulations?
One way the program can act is to make a report to the criminal justice agency that mandated the offender into treatment, so long as it has a criminal
justice system consent form signed by the offender that is worded broadly enough to allow this sort of information to be disclosed. The criminal justice agency can then act on the information. However, the regulations limit what the criminal justice agency can do with the information. Section 2.35(d) states that anyone receiving information pursuant to a criminal justice system consent "may redisclose and use it only to carry out that person's official duties with regard to the patient's conditional release or other action in connection with which the consent was given."
Thus, the disclosure can be used by the referring criminal justice agency to revoke an offender's conditional release. If the referring criminal justice agency wants to warn the potential victim or to notify another law enforcement agency of the threat, it must be careful that no mention is made that the source of the tip was an AOD program or that the offender is in AOD assessment or treatment. Disclosures that do not identify the offender as someone with an AOD problem are permitted. See discussion below on communications that do not disclose patient-identifying information. However, the disclosure most likely cannot be used to prosecute the offender for a separate crime (in other words, for making the threat). The only way to prosecute an offender based on information obtained from a program is to obtain a special court order in accordance with § 2.65. See Court-Ordered Disclosures, below.
If the offender has not signed a consent form permitting such disclosures to a criminal justice agency, the program faces a difficult problem: the apparent conflict between the Federal confidentiality requirements and the Tarasoff case. The Federal confidentiality law and regulations prohibit the type of disclosure that Tarasoff and similar cases require, unless the disclosure is made pursuant to a court order or is made without identifying the individual who threatens to commit the crime as a patient.6 Moreover, the Federal regulations make it clear that Federal law overrides any State law that conflicts with the regulations (§ 2.20). In the only case, as of this writing, that addresses this conflict between Federal and State law (Hasenie v. United States, 541 F. Supp. 999 (D. Md. 1982)), the court ruled that the Federal confidentiality law prohibited any report.
Confronted with conflicting moral and legal obligations, what should a program do? A program that learns that an offender is threatening violence to a particular person or persons may be well advised to seek a court order permitting a report or to make a report without revealing patient-identifying information. If a counselor believes there is clear and imminent danger to a particular 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. This is especially true in States that currently follow the Tarasoff rule.
While each case presents different questions, it is doubtful that any prosecution (or successful civil lawsuit) under the confidentiality regulations would be brought against a counselor who warned about potential violence when he or she believed in good faith that there was real danger to a particular individual. On the other hand, a civil lawsuit for failure to warn may well result if the threat is actually carried out. In any event, the counselor should at least try to make the warning in a manner that does not identify the individual as an AOD abuser, as discussed below.7
"Duty to warn" issues present an area in which staff training, as well as a staff review process, may be helpful.
Reference has been made to other exceptions to the general rule of the Federal confidentiality rules prohibiting disclosure regarding offenders who are assessed or treated for AOD abuse. In this section, eight additional exceptions to the general rule are explained.
The Federal regulations permit programs to disclose information about an offender if the program reveals no patient-identifying information. "Patient-identifying" information is information that identifies someone as an AOD abuser. Thus, a program may disclose information about an offender if that information does not identify him or her as an AOD abuser or support anyone else's identification of the offender as an AOD abuser.
There are two basic ways a program may make a disclosure that does not identify a patient. The first way is obvious: A program can report aggregate data about its population (summing up information that gives an overview of the patients served in the program) or some portion of its populations. Thus, for example, a program could tell the newspaper that in the last 6 months it screened 43 offenders, 10 female and 33 male.
The second way is trickier: A program can communicate information about an offender in a way that does not reveal the offender's status as an AOD abuse patient (§ 2.12(a)(i)). For example, a program that provides services to clients with other problems
or illnesses as well as AOD abuse may disclose information about a particular client as long as the fact that the client has an AOD abuse problem is not revealed. Consider an even more specific example: A program that is part of a general hospital can have a counselor call the police about a client's threat, so long as the counselor does not disclose that the client has an AOD abuse problem or is a client of the AOD abuse treatment program.
Programs that provide only AOD services cannot disclose information that identifies a client under this exception, since letting someone know a counselor is calling from the "XYZ Treatment Program" will automatically identify the offender as someone in the program. However, a freestanding program can sometimes make "anonymous" disclosures, that is, disclosures that do not mention the name of the program or otherwise reveal the offender's status as an AOD abuser.
A State or Federal court may issue an order that will permit a program to make a disclosure about an offender that would otherwise be forbidden. A court may issue one of these authorizing orders, however, only after it follows certain special procedures and makes particular determinations required by the regulations. A subpoena, search warrant, or arrest warrant, even when signed by a judge, is not sufficient, standing alone, to require or even to permit a program to disclose information8 (§ 2.61). Before a court can issue a court order authorizing a disclosure about an offender, the program and any offenders whose records are sought must be given notice of the application for the order and some opportunity to make an oral or written statement to the court.9 Generally, the application and any court order must use fictitious (made-up) names for any known offender, and all court proceedings in connection with the application must remain confidential unless the offender requests otherwise (§§ 2.64(a), (b), 2.65, 2.66).
Before issuing an authorizing order, the court must find that there is "good cause" for the disclosure. A court can find "good cause" only if it determines that the public interest and the need for disclosure outweigh any negative effect that the disclosure will have on the patient, or the doctor-patient or counselor-patient relationship, and the effectiveness of the program's treatment services. Before it may issue an order, the court must also find that other ways of obtaining the information are not available or would be ineffective (§ 2.64(d)). The judge may examine the records before making a decision (§ 2.64(c)).
If the purpose of seeking the court order is to obtain authorization to disclose information in order to investigate or prosecute a client for a crime, the court must also find that:
The crime involved is extremely serious, such as an act causing or threatening to cause death or serious injury
The records sought are likely to contain information of significance to the investigation or prosecution
There is no other practical way to obtain the information
The public interest in disclosure outweighs any actual or potential harm to the client, the doctor-patient relationship, and the ability of the program to provide services to other patients.
When law enforcement personnel seek the order, the court must also find that the program had an opportunity to be represented by independent counsel. (If the program is a governmental entity, it must be represented by counsel) (§2.65(d)).
There are also limits on the scope of the disclosure that a court may authorize, even when it finds good cause. The disclosure must be limited to information essential to fulfill the purpose of the order, and it must be restricted to those persons who need the information for that purpose. The court should also take any other steps that are necessary to protect the offender's confidentiality, including sealing court records from public scrutiny (§ 2.64(e)).
The court may order disclosure of "confidential communications" by an offender to the program only if the disclosure:
Is necessary to protect against a threat to life or of serious bodily injury, or
Is necessary to investigate or prosecute an extremely serious crime (including child abuse), or
Is in connection with a proceeding at which the offender has already presented evidence concerning confidential communications (for example, "I told my counselor . . .") (§ 2.63).
A program may make disclosures to public or private medical personnel "who have a need for information about [an offender] for the purpose of treating a condition which poses an immediate threat to the health" of the offender or any other individual. The regulations define "medical emergency" as a situation that poses an immediate threat to health and requires immediate medical intervention (§ 2.51).
The medical emergency exception only permits disclosure to medical personnel. This means that the exception cannot be used as the basis for a disclosure to the police or other nonmedical personnel, including family members.
Whenever a disclosure is made to cope with a medical emergency, the program must document in the offender's records:
The name and affiliation of the recipient of the information
When an offender has committed or threatened to commit a crime on program premises or against program personnel, the regulations permit the program to report the crime to a law enforcement agency or to seek its assistance. In such a situation, the program, without any special authorization, can disclose the circumstances of the incident, including the suspect's name, address, last known whereabouts, and status as a patient in the program (§ 2.12(c)(5)).
If a program routinely needs to share certain information with an outside agency that provides services to the program, it can enter into what is known as a qualified service organization agreement (QSOA).
A QSOA is a written agreement between a program and a person providing services to the program, in which that person: 1) acknowledges that in receiving, storing, processing, or otherwise dealing with any patient records from the program, he or she is fully bound by [the Federal confidentiality] regulations; and 2) promises that, if necessary, he or she will resist in judicial proceedings any efforts to obtain access to patient records except as permitted by these regulations (§§ 2.11, 2.12(c)(4)).
A sample QSOA is provided in Exhibit 6-4. A QSOA should only be used when an agency or official outside of the program is providing a service to the program itself. An example is when laboratory analyses or data processing is performed for the program by an outside agency.
A QSOA is not a substitute for individual consent in other situations. Disclosures under a QSOA must be limited to information that is needed by others so that their program can function effectively. QSOAs may not be used between programs providing AOD services.
The Federal regulations permit some information to be disclosed to individuals within the same program:
The restrictions on disclosure in these regulations do not apply to communications of information between or among personnel having a need for the information in connection with their duties that arise out of the provision of diagnosis, treatment, or referral for treatment of alcohol or drug abuse if the communications are (i) within a program or (ii) between a program and an entity that has direct administrative control over that program (§ 2.12(c)(3)).
In other words, staff who have access to patient records because they work for or administratively direct the program -- including full- or part-time employees and unpaid volunteers -- may consult among themselves or otherwise share information if their AOD abuse work so requires (§ 2.12(c)(3)).
A question that frequently arises is whether this exception allows a program that assesses or treats offenders and that is part of a larger entity -- such as a probation department or correctional facility -- to share confidential information with others who are not part of the assessment or treatment unit itself. The answer to this question is among the most complicated in this area. In brief, there are circumstances where the assessment unit can share information with other units, but it is essential before such a system is set up that an expert in the area be consulted for assistance.
All 50 States and the District of Columbia have statutes requiring reporting when there is reasonable cause to believe or suspect child abuse or neglect. While many State statutes are similar, each has different rules about what kinds of conditions must be reported, who must report, and when and how reports must be made.
Most States now require not only physicians but also educators and social service workers to report child abuse. Most States require an immediate oral (usually telephone) report and many now have toll-free numbers to facilitate reporting. Half the States require that both oral and written reports be made. All States extend immunity from prosecution to persons reporting child abuse and neglect. (In other words, a person who reports child abuse or neglect cannot be brought into court.) Most States provide for penalties for failure to report.
The Federal confidentiality regulations permit programs to comply with State laws that require the reporting of child abuse and neglect. Thus, if an offender reveals to program staff that he or she has neglected or abused children, that fact may well have to be reported to State authorities. Note, however, that this exception to the general rule prohibiting dis-closure of any information about a client applies only to initial reports of child abuse or neglect. Programs may not respond to followup requests for information or even subpoenas for additional information, even if the records are sought for use in civil or criminal proceedings resulting from the program's initial report, unless the offender consents or the appropriate court issues an order under subpart E of the regulations.
Because of the variation in State laws, programs should consult an attorney familiar with State law to ensure that their reporting practices are in compliance.
The confidentiality regulations also permit programs to disclose patient-identifying information to researchers, auditors, and evaluators without patient consent, providing certain safeguards are met (§§ 2.52, 2.53).10
The Federal confidentiality regulations require programs to notify clients of their right to confidentiality and to give them a written summary of the regulations' requirements. The notice and summary should be handed to offenders when they begin participating in the program or soon thereafter (§ 2.22(a)). The regulations also contain a sample notice.
Programs can use their own judgement to decide when to permit offenders to view or obtain copies of their records, unless State law grants patients the right of access to records. The Federal regulations do not require programs to obtain written consent from patients before permitting them to see their own records.
The Federal regulations require programs to keep written records in a secure room, a locked file cabinet, a safe, or other similar container.11 The program should establish written procedures that regulate access to and use of offenders' records. Either the program director or a single staff person should be designated to process inquiries and requests for information (§ 2.16).
1 The legal citation for these laws and regulations is 42 U.S.C. §§ 290dd-3 and ee-3 and 42 C.F.R. Part 2. 2 Citations in the form "§ 2..." refer to specific sections of 42 C.F.R. Part 2. 3 Only offenders who have "applied for or received" services from a program are protected. If an offender has not yet been assessed or counseled by a program and has not him- or herself sought help from the program, the program is free to discuss the offender's AOD problems with others. But, from the time the offender applies for services or the program first conducts an assessment or begins to counsel the offender, the Federal regulations govern. 4 Note, however, that no information that is obtained from a program (even if the patient consents) may be used in a criminal investigation or prosecution of a patient unless a court order has been issued under the special circumstances set forth in § 2.65. 42 U.S.C. §§ 290dd-3(c), ee-3(c); 42 C.F.R. §2.12(a),(d). 5 Suppose the offender has already been sentenced and has been assessed by Program A, but is being treated by Program B. Would § 2.35(d) permit the probation department to release the assessment to Program B without a separate consent from the offender? It would, since the offender's criminal justice status would not have changed and it would be doing so "to carry out [its] official duties with regard to ... [the criminal justice status] action in connection with which the consent was given." 6 The court order exception and the exception for nonpatient-identifying disclosures are discussed below. 7 For instance, a counselor employed by an AOD program that is part of a mental health facility could phone the police or the potential target of an attack, identify herself as "a counselor at the Cherry Valley Mental Health Clinic" and explain the risk to the potential target. This would convey the vital information without identifying the offender as an AOD abuser. Counselors at freestanding AOD units cannot give the name of the program. 8 For an explanation about dealing with subpoenas and search and arrest warrants, see Confidentiality: A Guide to the Federal Laws and Regulations, published in 1990 by the Legal Action Center, 153 Waverly Place, New York, NY 10014. 9 However, if the information is being sought to investigate or prosecute a patient for a crime, only the program need be notified (§ 2.65). And if the information is sought to investigate or prosecute the program, no prior notice at all is required (§ 2.66). 10 For a more complete explanation of the requirements of §§ 2.52 and 2.53, see Confidentiality: A Guide to the Federal Laws and Regulations, published in 1990 by the Legal Action Center, 153 Waverly Place, New York, NY 10014. 11 Staff in correctional facilities may face special problems maintaining records in accordance with the regulations. However, procedures must be worked out that follow the regulations as closely as possible.
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