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Center for Substance Abuse Treatment. Treatment of Adolescents with Substance Use Disorders. Rockville (MD): Substance Abuse and Mental Health Services Administration (US); 1999. (Treatment Improvement Protocol (TIP) Series, No. 32.)

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Treatment of Adolescents with Substance Use Disorders.

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Chapter 8—Legal and Ethical Issues

by Margaret K. Brooks, Esq. 1

Providers of adolescent treatment for substance use disorders must sometimes grapple with these two questions:

  1. Can the provider admit an adolescent into the treatment program without obtaining the consent of a parent, guardian, or other legally responsible person?
  2. How can substance use disorder treatment programs communicate with others concerned about an adolescent's welfare without violating the stringent Federal regulations protecting confidentiality of information about clients?

The answers to these questions are especially complex for those who treat adolescents for substance use disorders because a mix of Federal and State laws govern these areas; "adolescence" spans a range of ages and competencies; and the answer to each question may require consideration of a matrix of clinical as well as legal issues.

This chapter will examine the factors treatment service providers should consider in deciding whether a particular adolescent may consent to treatment in the absence of parental consent or notification and how communications with other systems can be accomplished without violating the adolescent's right to privacy. The first section discusses the consent issue in the context of the legal constraints imposed by Federal and State law and the clinical issues that may have an impact on the decision.

The second section discusses how providers can communicate with others concerned about the adolescent's welfare without violating either the Federal confidentiality rules or the adolescent's heightened sense of privacy.

Consent to Treatment

Americans attach great importance to being left alone. They pride themselves on having perfected a social and political system that limits how far government and others can control what they do. The principle of autonomy is enshrined in the Constitution, and U.S. courts have repeatedly confirmed Americans' right to make decisions for themselves. This tradition is particularly strong in the area of medical decisionmaking: An adult with "decisional capacity" 2 has the unquestioned right to decide which treatment he will accept or to refuse treatment altogether, even if that refusal may result in death.

The situation is somewhat different for adolescents because they do not have the legal status of full-fledged adults. There are certain decisions that society will not allow them to make: Below a certain age (which varies by State and by issue), adolescents must attend school, may not marry without parental consent, may not drive, and cannot sign binding contracts. Adolescents' right to consent to medical treatment or to refuse treatment also differs from adults'. Whether a substance use disorder treatment program may admit an adolescent without parental consent depends on State statutes governing consent and parental notification in the context of substance use disorder treatment and a number of fact-based variables, including the adolescent's age and stage of cognitive, emotional, and social development. Although it may make clinical sense to obtain consent for treatment from an underage adolescent, it is relevant to consider the wide range of factors that contribute to a program's decision to admit an adolescent for treatment without parental consent.

State Laws

More than half the States, by law, permit adolescents less than 18 years of age to consent to substance use disorder treatment without parental consent. In these States, providers may admit adolescents on their own signature. (The important question of whether the provider can or should inform the parents is discussed below.)

In States that do require parental consent or notification, a provider may admit an adolescent when there is parental consent or (in those States requiring notification) when the adolescent is willing to have the program communicate with a parent. Presumably, a parent whose child seeks treatment will consent. (A parent or guardian who refuses to consent to treatment that a health care professional believes necessary for the adolescent's well-being may face charges of child neglect.)

The difficulty arises when the adolescent applying for admission refuses to permit communication with a parent or guardian. As is explained more fully below, with one very limited exception, the Federal confidentiality regulations prohibit a program from communicating with anyone in this situation, including a parent, unless the adolescent consents. The sole exception allows a program director to communicate "facts relevant to reducing a threat to the life or physical well-being of the applicant or any other individual to the minor's parent, guardian, or other person authorized under State law to act in the minor's behalf," when

  • The program director believes that the adolescent, because of extreme youth or mental or physical condition, lacks the capacity to decide rationally whether to consent to the notification of her parent or guardian
  • The program director believes the disclosure to a parent or guardian is necessary to cope with a substantial threat to the life or physical well-being of the adolescent applicant or someone else. __2.14(c) and (d)

Note that _2.14(d) applies only to applicants for services. It does not apply to minors who are already clients. Thus, programs cannot contact parents of adolescents who are already clients without the adolescent's consent even if counselors are concerned about adolescent's behavior.

This is the point at which things become more complicated. If the adolescent refuses to consent to communication with a parent in a State that requires parental consent or notification, and the situation does not fit within the exception in __2.14(c) and (d), the program has two clear choices: It can refuse to admit the adolescent, 3 or it can admit the adolescent despite what the law seems to require. In making this decision, the program should consider the following factors (see Figure 8-1).

Figure 8-1: Decision Tree.

Figure 8-1: Decision Tree

Other Variables

The adolescent's age. Society accords adolescents increased autonomy as they get older. Although the details of the rules vary from State to State, adolescents in the middle age range may obtain a driver's license, often with limitations, and may work during their high school years, if they obtain work permits. It follows that a treatment provider that might refuse to admit a 14-year-old without parental consent in a State requiring it might have little concern admitting an 18-year-old in similar circumstances.

The adolescent's maturity. Chronological age is clearly not the only concern. There are 14-year-olds who have maturity beyond their years, and there are emotionally immature 18-year-olds with poor social skills and reasoning ability. Thus, a provider pondering whether to admit an adolescent without parental consent in a State requiring it should assess the adolescent's maturity as well as her chronological age.

The adolescent's family situation. This TIP has emphasized the importance of family involvement in treatment. However, involving an adolescent's parents or notifying them to obtain their consent may be impractical and clinically unwise in some cases. Adolescents who refuse to permit parental notification may have good reasons; requiring them to do so may not be ethical or very good clinical practice. Reconciliation with the family may be vital to an adolescent's recovery, but circumstances may dictate that it be abandoned or postponed until a later stage of treatment.

The kind of treatment to be provided. The more intrusive and intensive the proposed treatment would be, the more risk the program assumes in admitting the adolescent without parental consent. An outpatient program is on firmer ground admitting an adolescent without parental consent than an intensive outpatient or a residential program would be.

Federal confidentiality restrictions. As has already been mentioned, the Federal confidentiality regulations require substance use disorder treatment programs that wish to communicate with an adolescent's parents to obtain the adolescent's written consent.

The program's possible liability for refusing admission. State law may impose a duty on a program to treat clients in need.

The program's possible liability for treating the adolescent without parental consent. It is theoretically possible that a provider could be sued for treating an adolescent without obtaining parental consent in a State that requires it. It is, however, unlikely. If the treatment provided is uncontroversial and relatively nonintrusive, does not put the adolescent at risk, and is carried out in a responsible, nonnegligent manner, it would be hard for a parent to show that any harm was done. This is particularly so if the provider made a reasoned decision (relying on the factors discussed here) and acted in good faith and out of concern for the adolescent.

Of course, there is a slim possibility that a parent might sue a provider, claiming that treatment harmed the youngster or turned the adolescent away from the family. However, success in such a case would require proof that treatment harmed the adolescent or that family relationships were good prior to treatment and treatment caused the adolescent's alienation. These are extraordinarily difficult things to prove. Despite popular belief, most lawyers do not chase after cases that are complex, time-consuming, expensive, and difficult to win. Convincing an attorney to take on such a case would not be easy.

The program's financial condition. If the program admits an adolescent without parental consent, it may not be paid for its treatment services. Any effort to bill the parent over the objections of the adolescent would violate the Federal confidentiality regulations. If a program is publicly funded, support for services for adolescents who do not want their parents notified may not be a problem.

Because of the complexity of this issue, programs in States with laws that do not clearly allow admission of adolescents without parental consent or notification should develop an admissions policy. The policy should be based on the variables discussed above, vis-_-vis:

  • State law regarding treatment of adolescents (i.e., is parental consent and/or notification required?)
  • State law regarding program liability if adolescent clients in need are turned away
  • The family circumstances as related by the adolescent--verifying the adolescent's view of his family, with his consent, by contacting an adult who knows the family well
  • The adolescent's age and emotional, cognitive, and social maturity
  • The nature, severity, and complexity of presenting problems, and the kind of treatment the program provides
  • The program's financial capacity to provide treatment without reimbursement from the family
  • Potential for exposure to a lawsuit should the program admit the adolescent
  • With the above factors in mind, an assessment of the potential liability of the program if the adolescent is admitted

The admission policy need not be rigid. For example, a provider could develop a policy permitting treatment of limited duration for adolescents of sufficient maturity who are in need of treatment and who refuse to consent to parental notification. During that period of time, the program would provide treatment of light or moderate intensity and, at the same time, work with the adolescent on the notification issue. If the adolescent consents to parental notification after a period of time, the problem may be resolved. If the adolescent remains adamantly opposed to communication with her parents and if the program is convinced there is ample justification, it could assist the adolescent in finding another adult relative to bring into the picture or help find legal assistance that would permit the adolescent to gain "emancipated minor" status or simply continue treatment.

If an adolescent's family situation poses a real threat to her well-being, it may be appropriate for the program to report that fact to child welfare officials. 4 This option is also available to the provider who determines that it is inappropriate to admit an adolescent to treatment without parental consent because of the youngster's age or maturity. 5 The entire decisionmaking process, including reasons for exceptions to the policy, should be noted in the client's medical records.

Privacy and Confidentiality

Those who treat adolescents with substance use disorders are naturally concerned about their clients' privacy and confidentiality. For an adolescent, disclosure of a substance use disorder may contribute to negative stigma. Disclosures of information about an adolescent's substance use disorder might result in his having to deal with inquisitive peers, who may feel uncomfortable around him or subject him to ridicule. Adolescents in recovery have much to overcome, without having to face their peers before they are ready.

Given the importance of respecting adolescent clients' privacy, how can a program that assesses and treats adolescents approach family, school, and other sources that have information it may need? Can the program contact a parent or guardian without an adolescent's consent? If an adolescent tells a program staff member that she has been abused, can the program report it? If the adolescent tells a counselor she has committed a crime, should the counselor notify the police? If the adolescent is threatening harm to herself or another, can the program call the authorities? Are there special rules regarding confidentiality for programs operating in the juvenile justice system or for child welfare programs?

This section attempts to answer these and related questions. It has five parts. First, there is an overview of the Federal law protecting a youth's right to privacy when seeking or receiving treatment services. Next is a detailed discussion of the rules regarding the use of consent forms to get an adolescent's permission to release information about his seeking or receiving substance abuse services. The third reviews the rules for communicating with others about various issues concerning a youth who is in treatment for a substance use disorder (including rules for communicating with parents, guardians, and other sources; reporting child abuse; warning others of an adolescent's threats to harm herself or another; and special rules for use within the criminal and juvenile justice systems). The next part discusses a number of exceptions to the general rule barring disclosure such as medical emergencies. This section ends with a few additional points concerning a youth's right to confidential services and the need for programs to obtain legal assistance.

Federal Law Protects Adolescents' Right to Privacy

Concerned about the adverse effects social stigma and discrimination have on clients in recovery and how that stigma and discrimination might deter people from entering treatment, Congress passed legislation, and the Department of Health and Human Services issued a set of regulations to protect information about clients' substance use disorder treatment. The law is codified at 42 U.S.C. _290dd-2. The implementing Federal regulations, Confidentiality of Alcohol and Drug Abuse Client Records, are contained in 42 C.F.R. Part 2 (Vol. 42 of the Code of Federal Regulations, Part 2).

The Federal law and regulations severely restrict communications about identifiable clients by "programs" providing substance use/abuse 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 ostracized or subjected to discrimination.

The regulations restrict communications more tightly in many instances than, for example, either the doctor-client or the attorney-client privilege. Violating the regulations is punishable by a fine of up to $500 for a first offense and up to $5,000 for each subsequent offense (_2.4). 6 Some may view these Federal regulations governing communication about the adolescent and protecting 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 through planning ahead. Familiarity with the regulations' requirements will assist communication. It can also reduce confidentiality-related conflicts among the program, adolescent client, parent, and outside agencies so that they occur only in a few relatively rare situations.

What Types of Programs Are Governed by the Regulations?

Any program that specializes, in whole or in part, in providing treatment, counseling, and/or assessment and referral services for adolescents with substance use disorders 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 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 how a program labels its services. Calling itself a "prevention program" does not excuse a program from adhering to the confidentiality rules. It is the kind of services, not the label, that will determine whether the program must comply with the Federal law.

The General Rule: Overview of Federal Confidentiality Laws

The Federal confidentiality laws and regulations protect any information about an adolescent who has applied for or received any substance use/abuse-related assessment, treatment, or referral 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. 7 The restrictions on disclosure (the act of making information known to another) apply to any information that would identify the adolescent as having a substance use disorder either directly or by implication. The general rule applies from the time the adolescent makes an appointment. It also applies to former clients. 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.

When May Confidential Information Be Shared With Others?

Information that is protected by the Federal confidentiality regulations may always be disclosed after the adolescent has signed a proper consent form. (As will soon become clear, parental consent must also be obtained in some States.) The regulations also permit disclosure without the adolescent's consent in several situations, including medical emergencies, reporting child abuse, and communications among program staff. Nevertheless, obtaining the adolescent's consent is the most commonly used exception to the general rule prohibiting disclosure. The regulations' requirements regarding consent are strict and somewhat unusual and must be carefully followed.

Consent: Rules about obtaining adolescent consent to disclose treatment information

Most disclosures are permissible if an adolescent has signed a valid consent form that has not expired or been revoked (_2.31). 8 A proper consent form must be in writing and must contain each of the items specified in _2.31:

  • 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 adolescent 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 adolescent 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 will expire if not previously revoked
  • The signature of the adolescent (and, in some States, her parent)
  • 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 Figure 8-2.) A number of items on this list deserve further explanation and are discussed under the following subheadings:

  • The purpose of the disclosure and how much and what kind of information will be disclosed
  • The adolescent's right to revoke his consent
  • Expiration of the consent form
  • The adolescent's signature and parental consent
  • The required notice against re-releasing information

Figure 8-2: Sample Consent Form.

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Figure 8-2: Sample Consent Form.

These topics are followed by a note about agency use of the consent forms.

The purpose of the disclosure and how much and what kind of information will be disclosed

These two items 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 adolescent's file if the recipient of the information needs only one specific piece of information.

The purpose or need for the communication of information must be specified on the consent form. Once the purpose or need 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 specified need or purpose. That, too, must be written into the consent form.

As an illustration, if an adolescent needs to have her participation in counseling verified in order to be excused from school early, the purpose of the disclosure would be "to verify treatment status so that the school will permit early release," and the amount and kind of information to be disclosed would be "time and dates of appointments." The disclosure would then be limited to a statement that "Susan Jones (the client) is receiving counseling at XYZ Program on Tuesday afternoons at 2 p.m."

The adolescent's right to revoke consent

The adolescent may revoke consent at any time, and the consent form must include a statement to this effect. Revocation need not be in writing, but the standard of practice is to document a verbal revocation with a dated note in the treatment record. If a program has already made a disclosure prior to the revocation, acting in reliance on the adolescent's signed consent, it is not required to try to retrieve the information it has already disclosed.

The regulations also provide that "acting in reliance" includes the provision of services while relying on a consent form permitting disclosures to a third-party payor. (Third-party payors are health insurance companies, Medicaid, or any party that pays the bills other than the adolescent's family.) Thus, a program can bill the third-party payor for services provided before the consent was revoked. However, a program that continues to provide services after a client has revoked a consent authorizing disclosure to a third-party payor does so at its own financial risk.

Expiration of consent form

The form must also contain a date, event, or condition on which it 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)). Depending on the purpose of the consented disclosure, the consent form may expire in 5 days, 6 months, or longer. Sound practice calls for adjusting the expiration date in this way, rather than imposing a set time period, say 60 to 90 days. When providers use uniform expiration dates, they can find themselves in a situation for which there is a need for disclosure, but the adolescent's consent form has expired. This means at the least that the client must come to the agency again to sign a consent form. At worst, the client has left or is unavailable, and the agency will not be able to make the disclosure.

The consent form does not have to contain a specific expiration date but may instead specify an event or condition. For example, if an adolescent has been placed on probation at school on the condition that he attend counseling at the program, the consent form can be drafted to expire at the completion of the probationary period. Or, if an adolescent is being referred to a specialist for a single appointment, the consent form should stipulate that consent will expire after he has seen "Dr. X."

The signature of the adolescent (and the issue of parental consent)

The adolescent must always sign the consent form in order for a program to release information even to her parent or guardian. The program must get the signature of a parent, guardian, or other person legally responsible for the adolescent in addition to the adolescent's signature only if the program is required by State law to obtain parental permission before providing treatment to the adolescent (_2.14).

In other words, if State law does not require the program to get parental consent in order to provide services to the adolescent, then parental consent is not required to make disclosures (_2.14(b)). If State law requires parental consent to provide services to the adolescent, then parental consent is required to make any disclosures. Note that the program must always obtain the adolescent's consent for disclosures and cannot rely on the parent's signature alone.

Required notice against redisclosing information

Once the consent form has been properly completed, there remains one last formal requirement. Any disclosure made with client consent must be accompanied by a written statement that the information disclosed is protected by Federal law and that the recipient cannot further disclose or release such information unless permitted by the regulations (_2.32). This statement, not the consent form itself, should be delivered and explained to the recipient of the information at the time of disclosure or earlier. (Of course, an adolescent may sign a consent form authorizing a redisclosure.)

Note on agency use of consent forms

The fact that an adolescent 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)(1); 2.61(a)(b)). In most cases, the decision whether to make a disclosure authorized by a client's signed consent is up to the program, unless State law requires or prohibits a particular disclosure once consent is given. The program's only obligation under the Federal regulations is to refuse to honor a consent that is expired, deficient, or otherwise known to be revoked, false, or incorrect (_2.31(c)).

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 for disclosing the information.

Rules for Communicating With Others About Adolescents: Common Issues

Now that the rules regarding consent are clear, attention can turn to the questions that were introduced at the beginning of this section.

  • How can a program seek information from collateral sources about an adolescent, coordinate care with other agencies serving the adolescent, and make referrals for the adolescent?
  • How can programs communicate with parents?
  • Are there special rules for adolescents who are involved in the juvenile or criminal justice systems?
  • Do programs have a duty to warn potential victims or law enforcement agencies of threats by adolescents, and if so, how do they communicate the warning?
  • What should a program do if an adolescent confesses to committing a crime?
  • How should programs deal with adolescents' risk-taking behavior?
  • Can programs report child abuse?

Seeking Information From Collateral Sources, Coordinating Care, and Making Referrals

Making inquiries of schools, doctors, and other health care providers might, at first glance, seem to pose no risk to an adolescent's right to confidentiality. But it does.

When a program that screens, assesses, or treats adolescents asks a school, doctor, or parent to verify information it has obtained from the adolescent, it is making a disclosure that the named adolescent has sought help for a substance use disorder. The Federal regulations generally prohibit this kind of disclosure unless the adolescent consents.

How then is a program to proceed? The easiest way is to get the adolescent's consent to contact the school, health care facility, and so on. In fact, the program can ask the client to sign a consent form that permits it to make this kind of limited disclosure in order to gather information from 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 name of the organization" for each collateral source the program may contact. The program must also inform the party at the other end of the inquiry about the prohibition on redisclosure, orally at first if the communication is via telephone.

Note, however, if the information being disclosed is not about the adolescent's substance use disorder, then the answer may be different. For example, 14-year-olds may be able to authorize release of information about substance use disorder treatment, but a client may have to be 16 years old to consent to release a psychiatric record, and, in most jurisdictions, school systems will not release educational records if the client is less than 18 years old. Many programs have both child and parent sign to indicate that, even if only one signature is required by law, all parties involved agree to the release of the information.

Communications Among Agencies--Making Periodic Reports or Coordinating Care

Programs serving adolescents may have to confer on an ongoing basis with other agencies, such as mental health or child welfare programs. Again, the best way to proceed is to get the adolescent's consent (as well as parental consent when State law so requires). Care should be taken in wording the consent form to permit the kinds of communications necessary. For example, if the program needs ongoing communications with a mental health provider, the "purpose of the disclosure" would be "coordination of care for Hector Velez" and "how much and what kind of information will be disclosed" might be "treatment status, treatment issues, and progress in treatment." If the program is treating a client who is on probation at school and whose future school attendance is contingent on treatment, the "purpose of disclosure" might be "to assist the client to comply with the school district's mandates" or to "supply periodic reports about attendance" and "how much and what kind of information will be disclosed" might be "attendance" or "progress in treatment." Note that the kinds of information that will be disclosed in these two examples are quite different. The program might well share detailed clinical information about a client with a mental health provider if that would assist in coordinating care. Disclosure to a school should be limited to a brief statement about the client's attendance or progress in treatment. Disclosure of detailed clinical information to the school would, in most circumstances, be inappropriate.

The program should also give considerable thought to the expiration date or event the consent form should contain. For coordinating care with a mental health program, it might be appropriate to have the consent form expire when treatment by either agency ends. A consent form permitting disclosures to a school might expire when the adolescent's probationary period ends.

Programs treating adolescents often refer clients to other health care or social service agencies. Giving an adolescent the name and telephone number of an outside gynecologist, tutoring service, or training program might not be effective unless the adolescent's treatment counselor calls to set up the appointment for the adolescent. However, such a call is a disclosure of confidential information that the adolescent has a substance use disorder and requires the counselor to get the client's consent in writing (as well as parental consent in States requiring it).

Communicating With Parents or Guardians

As has been noted above, programs may not communicate with the parents of an adolescent unless they get the adolescent's written consent. When the adolescent is willing to consent to a disclosure to her parents, the program should take the opportunity to discuss with the adolescent whether she (and the program) want communications between the program and his parent or guardian to occur just once or on a regular basis. This decision will affect how the program fills out the consent form.

If a program counselor and the adolescent jointly decide they want the counselor to confer with the parent or guardian only once, in order to obtain the parent's consent to treatment or to gather additional information, the purpose of the disclosure (which must be stated on the consent form) would be "to notify Mary's parents" or "to obtain information from Mary's parents in order to assist in the assessment process." The "kind of information" to be disclosed (in either of these instances) would be "Mary's application for services." The expiration date should be keyed to the date of parental notification or the date by which the counselor thinks the assessment process will be completed.

If the program and Mary decide they want the program's counselor to be free to talk to Mary's parent or guardian over a longer period of time, the program would fill out the consent form differently. The purpose of the disclosure might then be "to provide periodic reports to Mary's parents" and the kind of information to be disclosed would be "Mary's progress in treatment." Or, the purpose might be "to provide family counseling to Mary and her family" and the kind of information to be disclosed would be "Mary's treatment." The expiration of this kind of open-ended consent form might be set at the date the program and Mary foresee counseling ending or even "when Mary's participation in the program ends." (However, Mary can revoke the consent any time she wishes.)

What if Mary refuses to consent? Because the Federal confidentiality regulations forbid disclosures without Mary's consent, the program cannot confer with her parents. This issue was discussed above.

Special Consent Rules for Adolescents Involved in the Criminal or Juvenile Justice Systems

Programs assessing or treating adolescents who are involved in the criminal justice system (CJS) or juvenile justice system (JJS) (i.e., juvenile court) must also follow the Federal confidentiality rules. However, some special rules apply when an adolescent comes for assessment or treatment as an official condition of probation, sentence, dismissal of charges, release from detention, or other disposition of a criminal or juvenile justice proceeding. 9

A consent form (or court order) is still required before a program can disclose information about an adolescent who is the subject of CJS or JJS referral. However, the rules concerning the length of time that a consent is valid and the process for revoking the consent are different (_2.35). Specifically, the regulations require that the following factors be considered in determining how long a CJS or JJS consent will remain in effect:

  • The anticipated duration of treatment
  • The type of juvenile or criminal proceeding
  • The need for treatment information in dealing with the proceeding
  • When the final disposition will occur
  • Anything else the adolescent, program, or justice agency believes is relevant

These rules allow programs to draft the consent form to expire "when there is a substantial change in the adolescent's justice system status." A substantial change in justice status occurs whenever the adolescent moves from one phase of the JJS or CJS to the next. For example, for an adolescent on probation, a change in JJS or CJS status would occur when the probation ends, either by successful completion or revocation. Thus, the program could provide an assessment and periodic reports to the adolescent's probation officer and could even testify at a probation revocation hearing if it so desired, because no change in status would occur until after that hearing.

Moreover, the Federal regulations permit the program to draft the consent form so that it cannot be revoked until a certain specified date or condition occurs. The regulations permit the JJS or CJS consent form to be irrevocable so that an adolescent 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 progress. Note that although a JJS or CJS consent may be made irrevocable for a specified period of time, that time period must end no later than the final disposition of the juvenile or criminal justice proceeding. Thereafter, the adolescent may freely revoke consent. A sample criminal justice consent form appears in Figure 8-3.

Figure 8-3: Consent Form: Criminal Justice System Referral.

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Figure 8-3: Consent Form: Criminal Justice System Referral.

Duty to Warn

For most treatment professionals, the issue of reporting a client's threat to harm another or commit a crime is a troubling one. Many professionals believe that they have an ethical, professional, or moral obligation to prevent a crime when they are in a position to do so, particularly when the crime is a serious one.

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 client 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 that case, the California Supreme Court held a psychologist liable for monetary damages because he failed to warn a potential victim that his client threatened to kill that person and then did so. The court ruled that if a psychologist knows that a client 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."

Although the Tarasoff ruling, strictly speaking, applies only in California, courts and legislatures in other States have adopted Tarasoff's reasoning to hold therapists liable for monetary damages when they have failed to warn someone threatened by a client. In most instances, liability is limited to situations in which a client threatens violence to a specific identifiable victim; liability does not usually apply when a client makes a general threat without identifying the intended target.

If an adolescent's counselor thinks the youth poses a serious risk of violence to someone, there are at least two--and sometimes three--questions that must be answered:

  1. Does a State statute or court decision impose a duty to warn in this particular situation?
  2. Even if there is no State legal requirement that the program warn an intended victim or the police, does the counselor feel a moral obligation to warn someone?

The first question can only be answered by an attorney familiar with the law in the State in which the program operates. If the answer to the first question is "no," then it is advisable to discuss the second question with a knowledgeable lawyer, too.

If the answer to question 1 or 2 is "yes," then how can the program warn the victim or someone able to take preventive action without violating the Federal confidentiality regulations?

The problem is that there is a conflict between the Federal confidentiality requirements and the duty to warn imposed by States that have adopted the Tarasoff rule. Simply put, the Federal confidentiality law and regulations appear to prohibit the type of disclosure that the Tarasoff rule requires. 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 (Hansenie v. United States, 541 F.Supp. 999 (D. Md. 1982)), the court ruled that the Federal confidentiality law prohibited any report.

When an adolescent makes a threat to harm himself or another and the program is confronted with conflicting moral and legal obligations, it can proceed in one of the following ways:

  • The program can go to court and request a court order authorizing the disclosure. The program must take care that the court abides by the requirements of the Federal confidentiality regulations (which are discussed below in detail).
  • The program can make a disclosure that does not identify the adolescent who has threatened to harm another as a client. This can be accomplished either by making an anonymous report or--for a program that is part of a larger nonsubstance use disorder treatment facility--by making the report in the larger facility's name. For example, a counselor employed by a substance abuse 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 New City Mental Health Clinic," and explain the risk. This would convey the vital information without identifying the adolescent as someone in substance use disorder treatment. Counselors at freestanding treatment programs cannot give the name of the program. (The "nonclient-identifying disclosure" exception is discussed more fully below.)
  • If the adolescent has been mandated into treatment by the CJS or JJS, the program can make a report to the mandating CJS or JJS agency, so long as it has a CJS consent form signed by the adolescent that has been worded broadly enough to allow this sort of information to be disclosed. The CJS or JJS agency can then act on the information to avert harm to the adolescent or the potential victim. However, the regulations limit what the justice agency can do with the information. Section 2.35(d) states that anyone receiving information pursuant to a CJS consent may redisclose and use it only to carry out that person's official duties with regard to the client's conditional release or other action in connection with which the consent was given. Thus, the referring justice agency can use the disclosure to revoke the adolescent's conditional release or probation or parole. If the justice agency wants to warn the victim or to notify another law enforcement agency of the threat, it must be careful that it does not mention that the source of the tip was someone at a substance use disorder treatment program or that the adolescent making the threat is in treatment for a substance use disorder. However, the disclosure most likely cannot be used to prosecute the adolescent for a separate offense (such as making the threat). The only way to prosecute an adolescent based on information obtained from a program is to obtain a special court order in accordance with _2.65 of the regulations (which is discussed below).
  • The program can make a report to medical personnel if the threat presents a medical emergency that poses an immediate threat to the health of any individual and requires medical intervention. (See the discussion of the medical emergency exception below.)
  • The program can obtain the client's consent.

If none of these options is practical and if a counselor believes there is a clear and imminent danger to an adolescent client or another identified person, then 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.

Although 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 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 having a substance use disorder.

Duty-to-warn issues represent an area in which staff training, as well as a staff review process, may be helpful. For example, a troubled youth may engage in verbal threats as a way of "blowing off steam." Such threats may be the adolescent's cry for additional support services. Program training and discussions can assist staff in sorting out what should be done in each particular situation.

Is There a Duty to Warn of an HIV-Infected Adolescent's Threat to Others?

One more duty-to-warn issue needs to be discussed. Do providers have a duty to warn others when they know that an adolescent they are treating is infected with HIV? When would that duty arise? Even where no duty exists, should providers warn others at risk about an adolescent's HIV status? Finally, how can others be warned without violating the Federal confidentiality regulations and State confidentiality laws?

Is there a duty?

The answer to the first question is a matter of State law. Courts in some States have held that health care providers have a duty to warn third parties of the behavior of persons under their care if it poses a potential danger to others. In addition to these court decisions, some States have enacted laws that either permit or require health care providers to warn certain third parties. These persons may include sex partners at risk. Usually, these State laws prohibit disclosure of the infected person's identity, while allowing the provider to tell the person at risk that he may have been exposed. It is important that providers consult with an attorney familiar with State law to learn whether the law imposes a duty to warn, as well as whether State law prescribes the ways in which a provider can notify the person at risk. (For example, is the provider prohibited from disclosing the adolescent's name? Must the adolescent consent?) Because the law in this area is still developing, it is also important to keep abreast of changes.

When does the duty arise?

Two behaviors of infected persons can put others at risk of infection: unprotected sex involving the exchange of bodily fluids and needle-sharing. Because HIV is not transmitted by casual contact, the simple fact that an adolescent is infected would not give rise to a duty to warn the adolescent's family or acquaintances who are not engaged in sex or needle-sharing with the adolescent.

This still leaves open the question of when a duty arises. Would it be when an adolescent tells a counselor that he wants or plans to infect others? Or would it arise when an adolescent tells the counselor that he has already exposed others to HIV? These are two different questions.

The threat to expose others

A counselor whose adolescent client threatens to infect others should consider three questions in determining whether there is a duty to warn:

Is the adolescent making a threat or "blowing off steam"? Sometimes, wild threats are a way of expressing anger. Such threats may be the adolescent's cry for additional support services. However, if the adolescent has a history of violence or of sexually abusing others, the threat should probably be taken seriously.

Is there an identifiable potential victim? Most States that impose a duty to warn do so only when there is an identifiable victim or class of victims. Without an identifiable victim, it is difficult to warn anyone; and, unless public health authorities have the power to detain someone in these circumstances, there is little reason to inform them.

Does a State statute or court decision impose a duty to warn in this particular situation? Even if there is no State legal requirement that the program warn an intended victim or the police, does the counselor feel a moral obligation to warn someone?

Clearly, there are no definitive answers in this area. As with other duty-to-warn issues, each case depends on the particular fact pattern presented and on State law. If a provider believes that she has a duty to warn under State law or that there is real danger to a particular individual giving rise to a moral or ethical duty to warn that individual, she should do so in a way that complies with both the Federal confidentiality regulations and any State law or regulation regarding disclosure of medical or HIV-related information. Because a client is unlikely to consent to a disclosure to the potential victim, in an effort to comply with the Federal regulations, a provider could

  • Seek a court order authorizing the disclosure. The provider should consult State law to determine whether it imposes requirements in addition to those imposed by the Federal regulations.
  • Make an "anonymous" warning--that is, a warning that does not disclose the adolescent's status as having a substance use disorder. The provider should also limit the way it issues the warning so as to expose the adolescent's identity as HIV-positive to as few people as possible.

Reporting an exposure

Suppose an HIV-infected adolescent tells his counselor that he has had unprotected sex or shared needles with someone? If the counselor knows who the person is, does she have a duty to warn the person (or law enforcement)?

This is not a true duty-to-warn case because the exposure has already occurred. The purpose of the "warning" is not to prevent a criminal act, but to notify an individual so that he can take steps to monitor health status or begin drug therapy. Thus, it is probably not helpful to call a law enforcement agency. Rather, the counselor might want to let the public health authorities know, particularly in States with mandatory partner notification laws. Public health officials can then find the person at risk and provide appropriate counseling.

How can programs notify the public health department without violating the confidentiality regulations? In some areas of the country, programs have signed qualified service organization agreements (QSOAs) with public health departments that provide services to the program (for more information on QSOAs, see the subsection, Sharing Information With an Outside Agency That Provides Services to the Programs, below). This enables providers to report exposures to the department in situations like these. The public health department can then help not only the person the counselor believes was exposed, but can also trace other contacts the adolescent may have exposed. In doing so, the public health department often does not identify the person who has put his contacts at risk. Certainly, the public health department would not have to tell the contact that the person is in treatment for a substance use disorder, and the QSOA would prohibit it from doing so. (A treatment program must also make sure that reporting an exposure by a client through a QSOA complies with any State law protecting medical or HIV-related information.)

Notifying others without violating the law

If the provider does not have a QSOA with the public health department, it might try one of the following:

  • Consent. The provider could inform the health department with the adolescent's consent. The consent form must comply with both the Federal confidentiality regulations and any State requirements governing client consent to release of HIV/AIDS information, as well as any State law governing consent by adolescents (i.e., whether a parent must also consent).
  • "Anonymous" notification. If the program notifies the public health department in a way that does not identify the adolescent as having a substance use disorder it would be complying with the Federal regulations.
  • Court order. Again, State law must be consulted to determine whether it imposes requirements in addition to those imposed by the Federal regulations.

One of these methods should enable the provider to alert the public health department, which is the most effective way to notify someone who may have been exposed.

The provider should document the factors that impelled the decision to warn an individual of impending danger of exposure or to report an exposure to the public health department. If the decision is later questioned, then notes made at the time the decision was made could prove invaluable.

Finally, the provider should remember that any time a program warns someone of a threat an adolescent makes without the adolescent's consent, the program may be undermining the trust of other adolescents and thus its effectiveness. This may be particularly true for a program serving HIV-positive adolescents. Other clients may learn of the disclosure, and the trust that the program worked so hard to build may be weakened. This is not to say that a disclosure should not be made--particularly when the law requires it. It is to say that a disclosure should not be made without careful thought.

The circumstances in which a duty to warn or notify arises may change over time as scientists learn more about the virus and its transmission and as better treatments are developed. There is little doubt that the law will also change as States adopt new statutes and their courts apply statutes to new situations.

Programs should develop a protocol about duty-to-warn cases, so that staff members are not left to make decisions on their own about when and how to report threats of violence and threats or reports of HIV transmission. Ongoing training and discussions can also assist staff members in sorting out what should be done in any particular situation.

Reporting Criminal Activity

What should a program do when an adolescent tells a counselor that she intends to go shoplifting at the mall, something the counselor knows he has done before. Does the program have a duty to tell the police? Does a program have a responsibility to call the police when an adolescent discloses to a counselor that he participated in a serious crime some time in the past? What can a program do when a client commits a crime at the program or against an employee of the program? These are three very different questions that require separate analysis.

Reporting threatened criminal activity

By this time, the reader should know the answer to the first question: A program generally does not have a duty to warn another person or the police about an adolescent's intended actions unless the client presents a serious danger of violence to an identifiable individual. Shoplifting rarely involves violence, and the counselor may not know which stores are to be victimized. Petty crime like shoplifting is an important issue that should be dealt with therapeutically. It is not something a program should necessarily report to the police.

Reporting past criminal activity

Suppose, however, that an adolescent client admits during a counseling session that he killed someone 3 months ago. Here the program is not warning anyone of a threat, but serious harm did come to another person. Does the program have a responsibility to report that?

In a situation in which a program thinks it might have to report a past crime, there are generally three questions to consider:

  1. Is there a legal duty to report the past criminal activity to the police under State law?

Generally, the answer to this question is no. In most States, there is no duty to tell the police about a crime committed in the past. Even those States that impose a duty to report rarely prosecute violations of the law.

  1. Does State law permit a counselor to report the crime to law enforcement authorities if she wants to?

Whether or not citizens have a legal obligation to report past crimes to the police, State law may protect conversations between counselors of substance use disorder treatment programs and their clients and exempt counselors from any requirement to report past criminal activity by clients. State laws vary widely on the protection they accord communications between clients and counselors. In some States, admissions of past crimes may be considered privileged, and counselors may be prohibited from reporting them; in others, admissions may not be privileged. Moreover, each State defines the kinds of relationships protected differently. Whether a communication about past criminal activity is privileged (and therefore cannot be reported) may depend on the type of professional the counselor is and whether she is licensed or certified by the State.

Any program that is especially concerned about this issue should ask a local attorney for an opinion letter about whether there is a duty to report and whether any counselor-client privilege exempts counselors from that duty.

  1. If State law requires a report (or permits one and the program decides to make a report), how can the program comply with the Federal confidentiality regulations and State law?

Any program that decides to make a report to law enforcement authorities about a client's prior criminal activity must do so without violating either the Federal confidentiality regulations or State laws. A program that decides to report a client's crime can comply with the Federal regulations by following one of the first three methods described above in the discussion of duty to warn:

  • It can make a report in a way that does not identify the adolescent as a client in substance use disorder treatment.
  • It can obtain a court order permitting it to make a report if the crime is "extremely serious" (_2.65(d)).
  • If the adolescent is an offender who has been mandated into treatment by a criminal justice or juvenile justice agency, the program can make a report to that justice agency, if it has a CJS consent form signed by the adolescent that is worded broadly enough to allow this sort of information to be disclosed. (Note, however, that the regulations limit the actions law enforcement officials may take once they have received the information.)

Because of the complicated nature of this issue, any program considering reporting an adolescent's admission of criminal activity should seek the advice of a lawyer familiar with local law as well as the Federal regulations. Because past criminal activity may not indicate an emergency, the counselors do not have to decide immediately whether to report it. This issue can be addressed with the client as a treatment issue. With the support of a program and proper legal advice, the adolescent may report the crime himself.

Reporting crimes on program premises or against program personnel

The answer is more straightforward when an adolescent client has committed or threatens to commit a crime on program premises or against program personnel. In this situation, the regulations permit the program to report the crime to a law enforcement agency or to seek its assistance. In such a situation, without any special authorization, the program can disclose the circumstances of the incident, including the suspect's name, address, last known whereabouts, and status as a client at the program (_2.12(c)(5)).

One crime that an adolescent might well commit on program premises is drug possession--bringing drugs into the program either on her person or (if the program is residential) in her luggage. When a program finds drugs on a client or in a client's personal property, what should it do? Should the program call the police? What should it do with the drugs?

The answer to the first question has already been discussed above in the section dealing with reporting criminal activity. Generally, State law does not require programs to make such a report. As for the second question, State regulations often govern how a program may dispose of drugs, sometimes requiring that they be flushed down a toilet. Programs should check with their State substance abuse agency if they are unsure about State mandates.

Dealing With Adolescents' Risk-Taking Behavior

Adolescents in treatment for a substance use disorder may engage in risky activities such as renewed drug-taking, criminal behavior, risky sexual conduct, or other activity dangerous to themselves or others. If a counselor believes that the adolescent's conduct is dangerous and counseling seems not to be productive in reducing that behavior, what should he do?

This chapter has already examined what the counselor cannot do: He cannot call the adolescent's parents without the adolescent's consent and, unless there are unusual circumstances, he most likely cannot call law enforcement authorities. There are, however, some things he can do:

  • If the adolescent has relapsed into substance use and the relapse has reached the point where it threatens her health and requires immediate medical intervention, the counselor could call the adolescent's family doctor under the "medical emergency" exception. Note that the situation must be a real medical emergency. The medical personnel that the counselor calls must "have a need for the information_for the purpose of treating" the adolescent's condition (_2.51). (For the other requirements of this section, see below.)
  • Alternatively, the program could apply for a court order that would authorize it to inform the adolescent's parents or other responsible adults.

Neither of these alternatives is very satisfactory. A program can use the "medical emergency" exception only in very limited circumstances, and obtaining a court order is time-consuming and expensive.

There is a more satisfactory option: When a program admits an adolescent who has a history of risk-taking behavior, the program could ask the adolescent to sign a consent form that authorizes the program to tell an adult the adolescent trusts if the adolescent's behavior takes a dangerous turn. The adult named could be a parent or other relative, a minister or youth counselor, or anyone else with whom the adolescent has rapport. An adolescent entering treatment might consent to this arrangement because she may believe, as do many people entering treatment, that she will not suffer a relapse. An added benefit of this kind of request is that it demonstrates to the adolescent that the program respects her feelings and preferences, takes confidentiality seriously, and will not disclose information to others without the adolescent's consent.

Note that if a counselor notifies the person named in the consent form, that person is bound by the regulations not to disclose the information further without the adolescent's consent, unless he can do so without revealing the fact that the adolescent is in treatment for a substance use disorder. The adolescent can revoke her consent at any time.

Reporting Child Abuse and Neglect

All 50 States and the District of Columbia have statutes requiring reporting when there is reasonable cause to believe or suspect that child abuse or neglect is occurring. Although 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.

When a program makes such a report, it should generally notify the family, unless the notification would place the child in further danger. The program should also endeavor to continue to work with the family as the State investigates the complaint and the child protective process unfolds. Families should never be abandoned because of suspected abuse or neglect, and health care providers should be wary of making judgments until a comprehensive assessment has been completed by State authorities.

Most States now require not only physicians but also educators and social service workers to report child abuse. Most States require an immediate oral (spoken) report, and many now have toll-free numbers to facilitate reporting. (Half of the States require that both oral and written reports be made.) All States extend immunity from prosecution to persons reporting child abuse and neglect. Most States provide penalties for failure to report.

Program staff will often need some form of training to review the State's child abuse and neglect laws and to clearly explain what the terms abuse and neglect really mean according to the law. A lay person's--or a professional's--idea of child neglect may differ greatly from the legal definition. For example, in some States, a child living with a parent involved in extensive substance abuse, perhaps surrounded by a culture of drugs and alcohol, is not considered to be abused or neglected unless certain other conditions are met. Such legal definitions may go against the grain of what some staff members consider to be in the best interest of the child, but these are safeguards that have developed over time to protect the child, the parent, and the family unit. A forthcoming TIP entitled Responding to Child Abuse and Neglect Issues of Adult Survivors in Substance Use Disorder Treatment (CSAT, in press) provides more information on this issue.

Because of the variation in State law, programs should consult an attorney familiar with State law to ensure that their reporting practices are in compliance. 10 Because many State statutes require that staff members report instances of abuse to administrators, who are then required to make an official report, programs should establish reporting protocols to bring suspected child abuse to the attention of program administrators. Administrators, in turn, should shoulder the responsibility to make the required reports.

The Federal confidentiality regulations permit programs to comply with State laws that require the reporting of child abuse and neglect. However, this exception to the general rule prohibiting disclosure 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 to subpoenas for additional information, even if the records are sought for use in civil or criminal proceedings resulting from the program's initial report. The only situation in which a program may respond to requests for followup information is when the adolescent consents or the appropriate court issues an order under subpart E of the regulations.

Other Exceptions to The General Rule

Reference has been made to other exceptions to the general rule prohibiting disclosure regarding an adolescent who seeks or receives substance use disorder treatment services.

In the subsections that follow, six exceptions to the Federal confidentiality rules are examined in greater detail:

  • Disclosures that do not reveal that the client as having a substance use disorder
  • Disclosures authorized by court order
  • Disclosures during medical emergencies
  • Disclosures to an outside agency that provides a service to the program
  • Disclosures of information within the program
  • Disclosures of information to researchers, auditors, and evaluators

Communications That Do Not Disclose "Client-Identifying" Information

Federal regulations permit substance use disorder treatment programs to disclose information about an adolescent if the program reveals no client-identifying information. "Client-identifying" information is information that identifies someone as having a substance use disorder. Thus, a program may disclose information about an adolescent if that information does not identify him as having a substance use disorder or support anyone else's identification of the adolescent as having a substance use disorder.

There are two basic ways a program may make a disclosure that does not identify a client. The first way is obvious: A program can report aggregate data about its population (summing up information that gives an overview of the clients served in the program) or some portion of its population. Thus, for example, a program could tell the newspaper that, in the last 6 months, it screened 43 adolescent clients--10 female and 33 male.

The second way has already been discussed: A program can communicate information about a specifically named adolescent in a way that does not reveal the adolescent's status as a substance use disorder treatment client (_2.12(a)(i)). Thus, a program that provides services to adolescents with other problems or illnesses as well as substance use disorders may disclose information about a particular client (e.g., in order to make a referral) as long as it does not reveal the fact that the client has a substance use disorder or is receiving treatment. A counselor employed by a program that is part of a general hospital could call the police about a threat an adolescent made, so long as the counselor did not disclose that the adolescent has a substance use disorder or is a client of the treatment program.

Programs that provide only substance use disorder services cannot disclose information that identifies a client under this exception, because letting someone know a counselor is calling from the "XYZ Treatment Program" will automatically identify the adolescent as someone in the program. However, a free-standing program can sometimes make "anonymous" disclosures, that is, disclosures that do not mention the name of the program or otherwise reveal the adolescent's status as having a substance use disorder. Note that with the widespread use of caller identification, "anonymous" communications may not be so anonymous. Soon, it may no longer be possible for a freestanding program to use this kind of anonymous communication.

Court-Ordered Disclosures

A State or Federal court may issue an order that will permit a program to make a disclosure about an adolescent 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 information (_2.61). 11

Before a court can issue an order authorizing a disclosure about an adolescent that is otherwise forbidden, the program and the adolescent 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. 12 Generally, the application and any court order must use fictitious (made-up) names for any known adolescent, not the real name of a particular client. All court proceedings in connection with the application must remain confidential unless the adolescent 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 client or the doctor-client or counselor-client 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)). 11 The judge may examine the records before making a decision (_2.64(c)).

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 adolescent's confidentiality, including sealing court records from public scrutiny (_2.64(e)).

The court may order disclosure of "confidential communications" by an adolescent to the program only if the disclosure

  • Is necessary to protect against a threat to life or of serious bodily injury
  • Is necessary to investigate or prosecute an extremely serious crime (including child abuse)
  • Is in connection with a proceeding at which the adolescent has already presented evidence concerning confidential communications (e.g., "I told my counselor ...") (_2.63)

If the purpose of seeking the court order is to obtain authorization to disclose information to law enforcement authorities so that they can investigate or prosecute a client for a crime, the court must also find that (1) the crime involved is extremely serious, such as an act causing or threatening to cause death or serious injury; (2) the records sought are likely to contain information of significance to the investigation or prosecution; (3) there is no other practical way to obtain the information; and (4) the public interest in disclosure outweighs any actual or potential harm to the client, the doctor-client relationship, and the ability of the program to provide services to other clients. 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 government entity, it must be represented by counsel (_2.65(d)).

Medical Emergencies

A program may make disclosures to public or private medical personnel "who have a need for information about [an adolescent] for the purpose of treating a condition which poses an immediate threat to the health" of the adolescent 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 permits disclosure only 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 parents. Under this exception, however, a program could notify a private physician or school nurse about a suicidal adolescent so that medical intervention can be arranged. The physician or nurse could, in turn, notify the adolescent's parents, so long as no mention is made of the adolescent's substance use disorder.

Whenever a disclosure is made to cope with a medical emergency, the program must document the following information in the adolescent's records:

  • The name and affiliation of the recipient of the information
  • The name of the individual making the disclosure
  • The date and time of the disclosure
  • The nature of the emergency

Sharing Information With an Outside Agency That Provides Services to the Program

If a program routinely needs to share certain information with an outside agency that provides services to it, then it can enter into what is known as a QSOA. (A sample QSOA is provided in Figure 8-4.)

Figure 8-4: Qualified Service Organization Agreement.

Table

Figure 8-4: Qualified Service Organization Agreement.

A QSOA is a written agreement between a program and a person (or agency) providing services to the program, in which that person (or agency):

  • Acknowledges that in receiving, storing, processing, or otherwise dealing with any client records from the program, she is fully bound by (the Federal confidentiality) regulations
  • Promises that, if necessary, she will resist in judicial proceedings any efforts to obtain access to client records except as permitted by these regulations (__2.11, 2.12(c)(4))

A QSOA should be used only when an agency or official outside the program is providing a service to the program itself. An example is when laboratory analyses or data processing are 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 the program can function effectively. A QSOA may not be used between different programs providing substance use disorder treatment and other services.

Internal Program Communications

The Federal regulations permit some information to be disclosed to staff members 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 substance use disorders if the communications are (1) within a program or (2) 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 client 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 substance use work so requires (_2.12(c)(3)).

A question that frequently arises is whether this exception allows a program that treats adolescents and that is part of a larger entity, such as a school, 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 under which the substance use disorder treatment unit can share information with other units. However, before such an internal communication system is set up within a large institution, it is essential that an expert in the area be consulted for assistance.

Research, Audit, or Evaluation

The confidentiality regulations also permit programs to disclose client-identifying information to researchers, auditors, and evaluators without client consent, provided certain safeguards are met (__2.52, 2.53). 13

Other Rules About Adolescents' Right to Confidentiality

Client notice and access to records

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 adolescents when they begin participating in the program or soon thereafter (_2.22(a)). The regulations contain a sample notice. Programs can use their own judgment to decide when to permit adolescents to view or obtain copies of their records, unless State law allows clients or students the right of access to records. The Federal regulations do not require programs to obtain written consent from clients before permitting them to see their own records.

Security of records

The Federal regulations require programs to keep written records in a secure room, a locked file cabinet, a safe, or other similar container. 14 Programs should establish written procedures that regulate access to and use of adolescents' records. Either the program director or a single staff person should be designated to process inquiries and requests for information (_2.16).

A Final Note

Substance use disorder treatment programs should try to find a lawyer who is familiar with local laws affecting their problems. As has already been mentioned, State law governs many concerns relating to treatment of adolescents. A practicing lawyer with an expertise in adolescent substance use concerns is the best source for advice on such issues. Moreover, when it comes to certain issues, the law is still developing. For example, programs' duty to warn of clients' threats to harm others is constantly changing as courts in different States consider cases brought against a variety of different kinds of care providers. Programs trying to decide how to handle such a situation need up-to-the minute advice on their legal responsibilities.

Footnotes

1

This chapter was written for the Revision Panel by Margaret K. Brooks, Esq., Montclair, New Jersey.

2

An adult with "decisional capacity" is one who is able to understand an explanation of her diagnosis, prognosis, and choices of treatment, as well as their risks and benefits, and likely outcome should treatment be refused.

3

In States where parental consent is not required for treatment, the Federal confidentiality regulations permit a program to withhold services if the minor will not authorize a disclosure that the program needs in order to obtain financial reimbursement for that minor's treatment. The regulations add a warning, however, that such action might violate a State or local law (_2.14(b)).

4

Program staff may need training about what the State's child abuse and neglect laws require, including what conditions are considered reportable. See the discussion of child abuse reporting.

5

Of course, a provider may turn an adolescent away for clinical reasons, that is, because it has determined that no treatment is needed or that the treatment it offers is inappropriate for the particular adolescent. In this case, the program might want to make a referral to another type of counseling service or to another substance use disorder treatment program. The procedure for making a referral is discussed in section 2.

6

Citations in the form "_2..." refer to specific sections of 42 Code of Federal Regulations (C.F.R.) Part 2.

7

Only adolescents who have "applied for or received" services from a program are protected. If an adolescent has not yet been evaluated or counseled by a program and has not himself sought help from the program, the program is free to discuss the adolescent's substance use disorders with others, although it would not be wise to do so. But, from the time the adolescent applies for services or the program first conducts an evaluation or begins to counsel the youth, the Federal regulations govern.

8

Note, however, that no information that is obtained from a program (even if the client consents) may be used in a criminal investigation or prosecution of a client unless a court order has been issued under the special circumstances set forth in _2.65. 42 U.S.C. _290dd-2(c); 42 C.F.R. _2.12(a),(d).

9

Although the rules concerning CJS consent probably apply to proceedings in juvenile court involving acts that, if committed by an adult, would be a crime, there appear to be no cases on point. It is less likely that the special CJS consent rules would apply when an adolescent is adjudicated (found to be) in need of special supervision (e.g., "persons in need of supervision"), but not guilty of a criminal act.

10

If an attorney is not immediately available, and someone wants information about child abuse and neglect rules within a particular State, contact the social service or child welfare agency for that area. Nationally, the Child Welfare League of America can also be called at 202-638-2952. Definitions of terms can also be accessed on the Internet. State statute definitions are located at http://www.calib.com/nccanch/statutes.htm. Federal definitions, which appear in the Child Abuse Prevention and Treatment Act (CAPTA), 42 U.S.C. _5106g, are available on the Internet at http://www.calib.com/ nccanch/pubs/whatis.htm

11

For information about how to deal with communications with lawyers, law enforcement officials and subpoenas, see TIP 24, A Guide to Substance Abuse Services for Primary Care Clinicians, (CSAT, 1997), pp. 111-112. For information about dealing with search and arrest warrants, see TIP 19, Detoxification from Alcohol and Other Drugs (CSAT, 1995c), pp. 83-84. Additional information about dealing with subpoenas appears in Confidentiality: A Guide to the Federal Laws and Regulations, (New York: Legal Action Center, 1995 ed.).

12

However, if the information is being sought to investigate or prosecute a client 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).

13

Outcome evaluation that assesses clients' behavior at set times after completion of treatment (the importance of which is mentioned in Chapter 2) poses particular problems under the Federal regulations. For a discussion of this issue and a more complete explanation of the requirements of __2.52 and 2.53, see TIP 14, Developing State Outcomes Monitoring Systems for Alcohol and Other Drug Abuse Treatment (CSAT, 1995a), pp. 58-59.

14

Computerization of records greatly complicates efforts to ensure security. For a brief discussion of some of the issues computerization raises, see TIP 23, Treatment Drug Courts: Integrating Substance Abuse Treatment With Legal Case Processing (CSAT, 1996), pp. 52-53.

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