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Center for Substance Abuse Treatment. Combining Substance Abuse Treatment with Intermediate Sanctions for Adults in the Criminal Justice System. Rockville (MD): Substance Abuse and Mental Health Services Administration (US); 1994. (Treatment Improvement Protocol (TIP) Series, No. 12.)

  • This publication is provided for historical reference only and the information may be out of date.

This publication is provided for historical reference only and the information may be out of date.

Cover of Combining Substance Abuse Treatment with Intermediate Sanctions for Adults in the Criminal Justice System

Combining Substance Abuse Treatment with Intermediate Sanctions for Adults in the Criminal Justice System.

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Chapter 7 - Ethical and Legal Issues 1

This chapter addresses legal and ethical issues that affect the structure and operation of intermediate sanctions programs run collaboratively by the alcohol and other drug (AOD) treatment and criminal justice systems. The key legal and ethical issue is protecting client confidentiality (that is, the offender-client's right to privacy).

Good communication between AOD assessment and treatment staff and criminal justice agencies is the most important component of ensuring client confidentiality. Many questions arise regarding rules and requirements of confidentiality laws:

  • Are there special Federal, State, and/or local rules when offenders are mandated into treatment as part of an intermediate sanction.
  • How can a treatment program approach various sources of information and support (for example, family, employers, and mental health providers) to assess an offender's needs without violating the offender's right to privacy.
  • How can the many diverse agencies concerned with or responsible for the offender's welfare communicate with each other about the offender's assessment or progress in treatment without violating confidentiality rules.
  • If the offender is threatening harm to him- or herself or another, can the program call the authorities.
  • If the offender admits he or she committed a crime, should the program call the police?

This chapter covers these issues in four sections:

  • Federal laws protecting the right to privacy of any person, including an offender, when that person is seeking or receiving AOD abuse assessment or treatment services.
  • Rules concerning use of consent forms to obtain an offender's permission to release information about his or her seeking or receiving AOD services, including the rule governing release of information to the criminal justice agency that mandated the offender into assessment or treatment.
  • Rules for communicating with others about various issues concerning an offender who is involved with AOD abuse assessment or treatment services (including how diverse agencies can communicate with each other and whether and how an AOD program can warn others of an offender's threats to harm).
  • Exceptions to the general rule that prohibits disclosure of information about persons involved with AOD abuse assessment and treatment services (for example, reporting crimes on program premises or against program personnel).

Federal Confidentiality Laws

Federal Laws

Two Federal laws and a set of regulations guarantee the strict confidentiality of information about persons -- including offenders -- receiving alcohol and drug abuse assessment and treatment services. 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.

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, for example, either the doctor-patient or the attorney-client privilege. Violation of 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

Federal confidentiality regulations require programs to notify patients 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 judgment to decide when to permit offenders to view or obtain copies of their records, unless State law grants clients the right of access to records. Federal regulations do not require programs to obtain written consent from clients before permitting them to see their own records.

Federal regulations require programs to keep written records in a secure room, a locked file cabinet, or other similar safe location or container. 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).

Some may view these Federal regulations as an irritation or a barrier to achieving program goals. However, most problems that may crop up under the regulations can be avoided through planning. Familiarity with regulation requirements will ease communication. It can also reduce confidentiality-related conflicts with programs, patients, and criminal justice agencies.

State and Local Laws and Regulations

A myriad of State and local laws on confidentiality also exist. These laws may conflict with or complement Federal confidentiality regulations. AOD treatment programs should determine their requirements by consulting with legal counsel familiar with State, local, and Federal laws and regulations that affect their programs.

A local practitioner 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" about client threats to harm others is constantly changing as courts in different States consider cases brought against different kinds of care providers. Programs trying to decide how to handle such situations need up-to-the-minute advice on their legal responsibilities.

Programs Governed by the Regulations

Any program that specializes, in whole or in part, in providing treatment, counseling, or assessment and referral services for offenders with AOD problems must comply with the Federal confidentiality regulations (42 C.F.R. §2.12(e)). The Federal regulations apply to programs that receive Federal assistance, including indirect forms of Federal aid (for example, tax-exempt status or State or local government funding received, in whole or in part, from the Federal Government).

Coverage under the Federal regulations is based on the kind of services provided. A program cannot avoid coverage by labeling its services differently (for example, by using such terms as "prevention program" or "assessment program").

The General Rule

Federal confidentiality laws and regulations protect any information about an offender if the offender has applied for or received any AOD-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. The restrictions on disclosure apply to any information that would identify the offender as an alcohol or other drug abuser, either directly or by implication.3 The general rule applies from the time the offender makes an appointment.4 It applies to offenders who are mandated into treatment as well those who enter treatment voluntarily. 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.

Sharing Confidential Information

Information that is protected by Federal confidentiality regulations may always be disclosed after the offender has signed a proper consent form.5 The regulations also permit disclosure without the offender's consent in several situations, including medical emergencies, program evaluations, and communications among program staff.

Typically, AOD programs will seek to obtain the offender's consent in order to make a disclosure that would otherwise be prohibited. The regulations provide for two different kinds of consent forms for clients mandated into assessment or treatment by the criminal justice system (§§2.31 and 2.35):

  • Special criminal justice system consent form for communications between an AOD program and the person or entity within the criminal justice system that mandated the offender's compliance with assessment or treatment (Exhibit 7-1).
  • General consent form, authorized by Federal regulations, for all other consented disclosures (Exhibit 7-2).

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Exhibit 7-1: Consent for the Release of Confidential Information: Criminal Justice System Referral. I, _______________________________________________________________, hereby consent to Name (more...)

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Exhibit 7-2: Consent for the Release of Confidential Information. I, ______________________________________________________________________, authorize Name of patient)

Federal regulations regarding consent are unusual and strict and must be carefully followed.

Refusal to Sign a Consent Form

Offenders who refuse to sign consent forms permitting essential communications can be excluded from treatment or provided treatment temporarily in the hope that resistance to signing the consent forms will evaporate as treatment proceeds.

Disclosure of AOD Information

Most disclosures are permissible if an offender has signed a valid consent form that has not expired or has not been revoked (§2.31).6 A proper consent form must be in writing and must contain each of the items contained in §2.31, including:

  • 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 client 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 client 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 client
  • 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. A number of items that deserve further explanation, including the purpose of the disclosure and how much and what kind of information will be disclosed, the offender's right to revoke the consent statement, expiration of the consent form, required notice against rereleasing information, and the discretion of the agency to release information authorized by the consent form.

Purpose of Disclosure and Disclosable Information

The purpose of the disclosure and the information to be disclosed 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 needs only a 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 identified need or purpose.

As an illustration, if the fact that an offender is in treatment needs to be documented so that the offender can be eligible for a benefit program such as home relief, the purpose of the disclosure would be "to obtain home relief benefits" and the amount and kind of information to be disclosed would be "enrollment in treatment." The disclosure would then be limited to a statement that "Emily Johnson [the offender-client] is participating in treatment at the XYZ Program." No other information about the offender would be released.

Offender's Right to Revoke Consent

The general consent form authorized by Federal regulations permits offenders to revoke consent at any time (orally or in writing), and the consent form must include a statement to this effect. This is a key difference between the general consent form and the criminal justice system referral consent form -- the latter of which does not permit revocation (see below).

If a program has already made a disclosure prior to the revocation, the program has acted in reliance on the consent (that is, 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 costs of services other than the client's family or the treatment agency.) Thus, a program can bill the third-party payer for past services provided before consent was revoked. However, a program that continues to provide services after a client has revoked a consent form authorizing disclosure to a third-party payer 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)).

It is better practice to think through how much time the consent form should include rather than have all consent forms within a treatment agency expire within a standard time frame (for example, within 60 or 90 days). When uniform expiration dates are used, agencies can find themselves in a situation where there is a need for the disclosure, but the client'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 the program or is unavailable (for example, in the hospital or incarcerated), and the agency will not be able to make the disclosure.

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 he or she attend counseling at the program, a consent form should be used that expires after completion of the probationary 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."

Required Notice Against Re-Release

Any disclosure made with written client consent must be accompanied by a written statement that the information disclosed is protected by Federal law and that the person receiving the information cannot make any further disclosure of such information unless permitted by the regulations (§2.32). This statement, not the consent form itself, should be explained and provided to the recipient of the information at the time of disclosure or earlier (see Exhibit 7-3).

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Exhibit 7-3: Prohibition on Redisclosing Information Concerning AOD Abuse Treatment Patients. This notice accompanies a disclosure of information concerning a client in alcohol/drug abuse treatment, (more...)

The prohibition on redisclosure is clear and strict. Those who receive the notice are prohibited from re-releasing information except as permitted by the regulations. (However, an offender may sign a consent form authorizing such a redisclosure.)

Discretion of Agency to Determine Release

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, 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 use the following rule: disclose only what is necessary, for only as long as is necessary, keeping in mind the purpose of the communication.

Special Rules on Consent Forms

As described above, programs assessing and treating offenders must follow the confidentiality rules that generally apply to AOD programs. However, some special rules apply to disclosure of information to the mandating criminal justice agency (that is, the agency requiring an offender to come for AOD assessment or treatment as an official condition of probation, sentence, dismissal of charges, release from detention, or other disposition of any criminal proceeding).

Length of Time Consent Is Valid

A consent form (or court order) is still required before any disclosure can be made about an offender who is mandated into AOD assessment or treatment. Federal regulations require that the following factors be considered in determining how long a consent form 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.

Rules governing a criminal justice system consent form differ from the general consent form. The criminal justice consent form cannot be revoked before its expiration event or date. In addition, the rules concerning the length of time that a consent remains valid are different.

The above Federal rules allow programs to continue to use a traditional expiration condition for a consent form (that is, "when there is a substantial change in the patient's justice system status"). This was formerly the only standard in existence. 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 or parole and is in an AOD program as a condition of probation or parole, there would be a change in criminal justice status when the term of probation or parole ends, either by successful completion or revocation. Thus, the program could provide an assessment or periodic treatment reports to the probation or parole officer monitoring the offender, and could even testify at a probation or parole revocation hearing if it so desired, since no change in criminal justice status would occur until after that hearing.

Revocability of Consent

As for the revocability of consent (the rules under which the offender can take back his or her consent), Federal regulations provide that the consent form can state that consent cannot be revoked until a certain specified date or condition occurs. The regulations allow the criminal justice system consent form to be irrevocable so that an offender who has been required to enter treatment in lieu of prosecution or as part of an intermediate sanction 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.7

Other Rules

Several other considerations relating to criminal justice system referrals are important.

First, any information 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 that particular criminal proceeding. The information may not be used in other proceedings, for other purposes, or with respect to other individuals (§2.34(d)).

In addition, whenever possible, it is best to have the judge or referring agency require that a proper criminal justice system consent form 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 consent form at his or her very first appointment. With a proper criminal justice consent form signed, the AOD program can communicate with the referring criminal justice agency even if the offender appears for assessment or treatment only once. This avoids the unfortunate problems that can arise if an offender mandated into assessment or treatment does not sign a proper consent form and leaves before the assessment or treatment has been completed.

If a program fails to have the offender sign a consent form and the offender fails to complete the assessment process or treatment, the program has few options when faced with a request for information from the referring criminal justice agency. 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 referred offender who has left the program in this type of case. This is because the regulations allow a court to order disclosure of treatment information for the purpose of investigating or prosecuting a patient for a crime only when the crime was "extremely serious." 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.

A final note: When a 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 about communications between the program and the criminal justice agency. For programs treating offenders, issues such as who will make certain decisions and what kinds of information will be reported are crucial. For example, it is important to specify whether the treatment program or the criminal justice agency will decide when an offender's relapse into AOD use is a treatment issue or a violation of the conditions of probation. It is also important to decide how detailed the program's reports to the criminal justice agency will 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 agreed-upon rules.

Communicating With Others

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 Federal rules. Do programs have a duty to warn others of threats by offenders, and if so, how do they communicate the warning. Should programs inform the police when the offender admits he or she committed a crime?

Seeking Information From Collateral Sources

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 another individual or entity to verify information it has obtained from the offender, it is making a patient-identifying disclosure that the offender has sought its services. 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, AOD program, health care facility, and so forth. The general AOD consent form (not the criminal justice system consent form) is the appropriate form.

As noted above, when filling out the consent form, thought should be given to what the purpose of the disclosure is and how much and what kind of information will be disclosed. For example, if a program is assessing an offender for treatment 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 kind of information disclosed would then be limited to a statement that "Paul O'Neal [the offender] is being assessed by the XYZ Program." No other information about Paul O'Neal would be released to the mental health provider.

If the program seeks not only records, but needs to discuss with the mental health provider the treatment it provided the offender, the purpose of the disclosure would be "to discuss mental health treatment provided to Paul O'Neal by the mental health program." If the program merely seeks information, the kind of information disclosed would, as in the example above, be limited to a statement that "Paul O'Neal is being assessed by the XYZ Program." However, if the program needs to disclose information it gained in its assessment of Paul O'Neal to the mental health provider to further the discussion, the kind of information disclosed would be "assessment information about Paul O'Neal."

A program that routinely seeks collateral information from many sources could consider 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 should keep in mind that even when information is disclosed over the telephone, they are still required to notify the recipients of the prohibition on redisclosure. Mention should be made of this restriction during the conversation; for example, program staff could say, "I'll be sending you a written statement that the information I gave you about Mr. O'Neal cannot be redisclosed."

Communicating With the Referring Criminal Justice Agency

Generally, the criminal justice consent form should be used for gaining client consent for communications with the criminal justice agency that referred the offender to assessment or treatment. Use of this form is important to ensure that offenders cannot revoke consent prior to the expiration date (that is, upon entry into the AOD treatment program). Circumstances for assessment and treatment programs are described below.

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 (that is, 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 intensive supervision 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 is the court or probation department) until a final decision has been reached.

Programs providing treatment need to be able to communicate with the referring criminal justice agency over an extended period of time. Therefore, Program B, the agency to which the offender is assigned for his or her mandated treatment, should have the offender sign a criminal justice system consent form permitting communication with the referring criminal justice agency until the period of community supervision -- probation or parole -- is completed, either successfully or through revocation proceedings.

Communications Between AOD Programs

A consent form is also required for release of information between AOD programs. The following examples illustrate this requirement.

Example 1. The agency in which the offender has been placed for treatment after sentencing (Program B) wants to see the treatment assessment completed by Program A. Program B will need a client consent form to get a copy from Program A and a different consent form to get a copy from the mandating criminal justice agency.

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 Federal regulations and cannot be released to Program B, or anyone else, without the offender's consent.

If Program B needs the assessment report prepared by Program A, it should have the offender sign two consent forms -- one permitting it to ask Program A for the report (since Program A has now become a collateral source) and another permitting Program A to release the report to Program B.8

Example 2. 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 other narrow exceptions.

Communications for Clients Who Change AOD Programs

Consent and confidentiality issues should also be considered in situations when an offender's treatment provider changes. For example, an offender may be treated for AOD abuse in a jail or prison and then referred to aftercare at a community-based program. The treatment record compiled by the correctional facility can be released to the community-based program, but only with the offender's consent. Similarly, when an offender has been treated in a community-based treatment program as part of a term of probation or parole and probation or parole is then revoked, resulting in incarceration, an AOD assessment or treatment program in a correctional facility can obtain the AOD treatment records that were compiled by the community-based AOD treatment program only with the offender's consent.

Jurisdictions that are considering establishing a system of comprehensive treatment for offenders along the entire criminal justice continuum, and that would like to encourage a flow of information about those offenders in treatment, should air and settle confidentiality questions before the system is up and running. Planners may find that using consent forms is the most sensible way to deal with questions about how protected information can flow from arrest through incarceration through parole and back. As the offender enters each phase of the system, he or she can sign a series of consent forms that will enable the AOD program to 1) gain information from AOD programs in the system that previously treated the offender and 2) communicate with the necessary criminal justice entities. As the offender leaves each phase of the system, he or she can sign a series of consent forms that will enable the AOD program to disclose information to programs that will treat the offender in the next phase (for example, during parole).

Ongoing Communications Among Agencies

AOD programs treating offenders often provide case management for their clients. Therefore, they frequently need to be able to communicate on an ongoing basis with a referral source or other service providers, such as mental health agencies or child welfare officials.

Again, client consent is required before such communication can occur. 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 (or case management) for Kate Sampson" 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 work and whose continued employment is contingent on treatment, the purpose of the disclosure might be "to assist the client to comply with employer's mandates" (or "supply periodic reports about treatment") and how much and what kind of information will be disclosed might be "progress in treatment."

Note that the kinds of information that will be disclosed in the 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 an employer would most likely be limited to a brief statement about the client's progress in treatment. Disclosure of clinical information to an employer would, in most circumstances, be inappropriate.9

The program should also determine the consent form's expiration date or the event for expiration. For coordinating care with a mental health provider, it might be appropriate to have the consent form expire when treatment by either party ends. A consent form permitting disclosures to an employer might expire when the client's probationary period at work ends.

Duty to Warn

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 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 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 killed. 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 in which patients threaten a specific identifiable victim. They do not usually apply when 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.

In a situation where a program thinks it might be faced with a "duty to warn" question, there are always at least two -- and sometimes three -- questions that need to be answered:

  • Is there a legal duty to warn in this particular situation under State law?
  • Even if there is no State legal requirement to warn the intended victim or the police, does the program 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," it is also advisable to discuss the second question with a knowledgeable lawyer.

  • If the answer to the first or second question is "yes," can the program warn the victim or someone likely to be able to take action without violating Federal AOD regulations?

The problem is that there is an apparent conflict between Federal confidentiality requirements and the "duty to warn" imposed by States that have adopted the principles of Tarasoff. Simply put, Federal confidentiality law and regulations prohibit the type of disclosure that Tarasoff and similar cases require,10 unless the AOD program can make a disclosure by using one of the regulations' narrow exceptions.

There are five ways a program can proceed when an offender makes a threat to harm himself or herself or another and the program decides to report the threat:

  • The program can 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 or probation or parole. If the referring criminal justice agency wants to warn the 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 the discussion of this exception below.) 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 below).
  • 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 Federal AOD regulations. (See the discussion of the court order exception below.)
  • The program can make a disclosure that does not identify the individual who threatens to commit the crime as an AOD client. This can be accomplished either by making an anonymous report or -- for a program that is part of a larger non-AOD entity -- by making the report in the larger entity's name. For example, 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 New City Mental Health Clinic," and explain the risk to the potential target. This would convey the vital information without identifying the client as an AOD abuser. Counselors at freestanding AOD units cannot give the name of the program.
  • The program can make a report to medical personnel if the threat presents a medical emergency that poses an immediate threat to the health of any individual and requires immediate medical intervention (§2.51). (See the discussion of the medical emergency exception below.)
  • The program can obtain the client's consent, although it is unlikely to be granted.11

If none of these options is practical, and a program believes there is a clear and imminent danger to a client or 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 already 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 try to make the warning in a manner that does not identify the individual as an AOD abuser.

Duty to warn issues present an area in which staff training, as well as a staff review process, may be helpful.

Reporting Criminal Activity Of Clients

Intention to Commit Criminal Activity

What should a program do when a client tells a counselor that she intends to get her children new clothes by shoplifting (a crime the counselor knows she has committed many times in the past). Does the program have a duty to tell the police?

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

Disclosure of a Previously Committed Crime

Does a program have a responsibility to call the police when a client discloses to a counselor that he participated in a serious crime some time in the past?

Suppose that a client admits during a counseling session that he killed someone during a robbery 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 where a program thinks it might have to report a past crime, there are generally three questions that need to be answered:

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 report a crime committed in the past to the police. Even in those States in which failure to report a crime is considered a crime, violations of the law are rarely prosecuted.

Does State law permit a counselor to report the crime to law enforcement authorities if he or she wants to. Whether or not there is a legal obligation imposed on citizens to report past crimes to the police, State law may protect conversations between counselors of AOD programs and their clients and exempt counselors from any requirement to report past criminal activity by clients. Such laws are designed to protect the special relationship AOD counselors have with their 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 upon the type of professional the counselor is and whether he or 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-patient privilege exempts counselors from that duty.

If State law requires a report (or permits one and the program decides to make a report), how can it comply with both 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 Federal confidentiality regulations or State laws. A program that decides to report a client's crime can comply with Federal regulations by following one of the first three methods described above in the discussion of duty to warn.

  • It can make a report to the criminal justice agency that mandated the offender into treatment, if 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.
  • It can obtain a court order permitting it to make a report if the crime is sufficiently serious.
  • It can make a report in a way that does not identify the individual as an AOD client.

Because of the complicated nature of this issue, any program considering reporting a client's admission of criminal activity should seek the advice of a lawyer familiar with local law as well as Federal regulations.

Other Exceptions to the General Rule

Reference has been made to other exceptions to Federal confidentiality rules prohibiting disclosure regarding offenders who are assessed or treated for AOD abuse. Eight additional exceptions to the general rule on confidentiality exist:

  • Information that does not reveal the client is an AOD user
  • Information shared with staff within the treatment program; information shared inside the agency with staff not part of the assessment or treatment unit
  • Information regarding crimes on program premises or against program personnel
  • Reporting child abuse or neglect
  • Information disclosed to an outside agency that provides the program with services
  • Information disclosed in a medical emergency
  • Disclosures authorized by a special court order
  • Information disclosed to researchers, auditors, and evaluators

Communications Not Disclosing Patient-Identifying Information

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 client.

Aggregate information. 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 offenders, 10 female and 33 male.

Release of information that does not indicate or imply the AOD status of the client. A program can communicate information about an offender in a way that does not reveal the offender's status as an AOD treatment 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. An even more specific example: A program that is part of a general hospital could have a counselor call the police about a threat a client made, as 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 or that provide a full range of services but are identified by the general public as AOD programs 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.

Communications Among Treatment Staff

Federal regulations permit some information to be disclosed to individual staff within the same program. Restrictions on disclosure do not apply to communications of information among personnel 1) within a program or 2) between a program and an entity that has direct administrative control over that program (§2.12(c)(3)). Such communications can occur only if the personnel have a need for the information in connection with their duties in providing diagnosis, treatment, or referral for treatment of AOD abuse.

In other words, staff who have access to patient records because they work for or administratively direct the program (including full-time or part-time employees and unpaid volunteers) may consult among themselves or otherwise share information if their AOD treatment work so requires (§2.12(c)(3)). And staff may communicate patient-identifying information to a person or entity having "direct administrative control" over a program if there is a need for the information "in connection with their [AOD] duties."

Communications Among Nonclinical Staff

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) 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 in which 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.

Two crucial issues must be considered.

  • The program must always keep in mind that it may communicate only information that will assist it or the supervisory entity to provide AOD services.
  • Once communications are made to an entity having administrative control over the program, that entity becomes part of "the program," and it is now subject to Federal confidentiality regulations. This means that personnel in that entity must become familiar with the Federal rules and that information they gain from the AOD program cannot be redisclosed to anyone else, unless the offender consents or one of the other exceptions in the Federal regulations applies.

Crimes on Program Premises or Against Program Personnel

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, 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 patient at the program (§2.12(c)(5)).

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 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 both oral and written reports.) 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.

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 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, 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.

Qualified Service Organization Agreements

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 or entity providing services to the program, in which that person or entity: 1) acknowledges that in receiving, storing, processing, or otherwise dealing with any patient records from the program, he, she, or it is fully bound by [Federal confidentiality] regulations; and 2) promises that, if necessary, he, she, or it 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 7-4.

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Exhibit 7-4: Qualified Service Organization Agreement. XYZ Service Center ("the Center") and the __________________________________________ ______________________________________________________________________________

A QSOA should be used only 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 the program can function effectively. QSOAs may not be used between programs providing AOD services.

Medical Emergencies

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 exception permits disclosure only to medical personnel. This means that it cannot be used as the basis for a disclosure to the police or other nonmedical personnel, including family.

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
  • The name of the individual making the disclosure
  • The date and time of the disclosure
  • The nature of the emergency.

Court-Ordered Disclosures

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 information12 (§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.13 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, 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 patient 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 patient, 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 disclosurethat 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), 2.65(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
  • Is necessary to investigate or prosecute an extremely serious crime (including child abuse)
  • 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).

Research, Audit, or Evaluation

Research and evaluation of the efficacy of AOD treatment for offenders are essential if criminal justice agencies are to increase their interest in and use of AOD treatment as part of intermediate sanctions. But can AOD programs share patient-identifying information with researchers and program evaluators?

The confidentiality regulations permit programs to disclose patient-identifying information to researchers, auditors, and evaluators without patient consent, providing certain safeguards are met (§§2.52, 2.53).

Research

AOD programs can disclose patient-identifying information with persons conducting "scientific research" if the program director determines that the researcher 1) is qualified to conduct the research, 2) has a protocol under which patient-identifying information will be kept in accordance with the regulations' security provisions (see §2.16), and 3) has provided a written statement from a group of three or more independent individuals who have reviewed the protocol and determined that it protects clients' rights.

Researchers are prohibited from identifying any individual client in any report or otherwise disclosing any client identities except back to the program.

Audit and Evaluation

Approved entities performing an audit or evaluation (for example, utilization or quality control review) may have access to client records on the program's premises. Approved entities include Federal, State, and local government agencies that fund or are authorized to regulate a program, private entities that fund or provide third-party payments to a program, and peer review entities. Any person or entity that reviews client records to perform an audit or conduct an evaluation must agree in writing that it will use the information only to carry out the audit or evaluation and that it will redisclose client information only 1) back to the program, 2) in accordance with a court order to investigate or prosecute the program (§2.66), or 3) to a government agency overseeing a Medicare or Medicaid audit or evaluation (§2.53(a), (c), (d)).

Approved entities may also copy or remove records but only if they agree in writing to maintain patient identifying-information in accordance with the regulations' security requirements (see §2.16), to destroy all patient-identifying information when the audit or evaluation is completed, and to redisclose client information only 1) back to the program, 2) in accordance with a court order to investigate or prosecute the program (§2.66), or 3) to a government agency overseeing a Medicare or Medicaid audit or evaluation (§2.53(b)).

Any other person or entity determined by the program director to be qualified to conduct an audit or evaluation, and who agrees in writing to abide by the restrictions on redisclosure, can also review client records. However, only approved entities can copy or remove records.

Followup Research

Research that follows clients for any period of time after they leave treatment presents a special challenge under the Federal regulations. The AOD program, researcher, or evaluator seeking to contact former clients to gain information about their status after leaving treatment has to do so without disclosing to others any information about the clients' connection to the AOD program.

If followup contact is to be attempted over the phone, the program or research entity has to be sure it is talking to the client before it reveals who it is or that there is a connection to AOD abuse treatment. For example, asking for Sally Jones when her husband or child answers the phone and announcing that the caller is from the XYZ AOD Program (or the Drug Research Corporation) violates the regulations. Another approach is for the program (or research agency) to form another entity, without a hint of AOD treatment in its name (for example, Health Research, Inc.) that can contact clients without worrying about disclosing information via the contact. However, when persons from this entity call clients, they still have to be careful about what they say over the phone and be sure that they are speaking to the client before revealing any connection to AOD abuse treatment.

If followup is to be done by mail, the return address should not disclose any information that could lead someone seeing the envelope to conclude that the former client was in treatment.

Footnotes

1.

This chapter was written for the consensus panel by Margaret K. Brooks, Esq.

2.

Citations in the form "§2..." refer to specific sections of 42 C.F.R. Part 2.

3.

The results of urine tests performed by AOD programs are protected by the Federal regulations. However, urine testing conducted by criminal justice authorities for the purposes of uncovering illegal drug use or monitoring offenders' compliance with rules against illegal drug use are not protected under the Federal regulations.

4.

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 drug or alcohol 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.

5.

If the offender is a minor, parental consent must also be obtained in some States.

6.

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-3(c), ee-3(c); 42 C.F.R. §2.12(a),(d).

7.

Once the criminal justice system consent has expired, no further information can be disclosed, unless the offender signs another (noncriminal justice system) consent to release the information (or another of the regulations' exceptions applies). For a discussion of how an AOD assessment or treatment program operating as part of an intermediate sanction can obtain the AOD treatment records that were compiled by an AOD treatment program the offender previously attended, see below.

8.

Suppose the offender had already been sentenced when he or she was 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."

9.

When a client enters treatment because of involvement with the criminal justice system, program staff should maintain an open mind about whether communications with an employer would be beneficial to the client. A client who tells program staff that his or her employer will not be sympathetic about the decision to enter treatment may well have an accurate picture of the employer's attitude. Insistence by program staff on communicating with the employer may cost a client his or her job. If such communication takes place without the client's consent, the program may find itself facing an unpleasant lawsuit.

10.

Moreover, the Federal AOD 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.

11.

Note that the Federal statutes and regulations strictly prohibit any investigation or prosecution of a client based on information obtained from records unless the court order exception is used. 42 U.S.C. §§290 dd-3(c) and ee-3(c) and 42 C.F.R. §2.12(d)(1).

12.

For an explanation about how to deal with subpoenas and search and arrest warrants, see Confidentiality: A Guide to the Federal Laws and Regulations, published in 1991 by the Legal Action Center, 153 Waverly Place, New York, 10014.

13.

However, if the information is being sought to investigate or prosecute a patient for a crime, only the program need be notified (§2.65). If the information is sought to investigate or prosecute the program, no prior notice at all is required (§2.66).

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