CMT8824 - SECTION 6: CONFIDENTIALLY ISSUES
All therapists and treatment personnel have legal and ethical responsibilities to maintain high levels of professional competence.
Legal and ethical practices are regulated by legal statutes (licensing or certification) and self-regulated by ethical codes, peer review, continuing education, and consultation, but interpreting the legal and ethical guidelines and applying them to particularly situations can be difficult. Even highly experienced practitioners differ over how to apply established ethical principles to specific situations.
The best way to practice is to demonstrate respect for clients, having their welfare as a central concern, and practicing within the framework of professional codes and practices. When a client enters a professional relationship with a therapist, the therapist takes on the ethical and legal responsibility of safeguarding the information that was discussed during the therapeutic relationship.
Confidentiality has long been a hallmark of individual and family therapy. Confidentiality basically means protecting the client or clients from unauthorized disclosure of personal information by the therapist unless the client gives authorization to do so.
However, there is an important source of tension between confidentiality laws and drug court and employee required treatment. Confidentiality laws restrict the spread of information, while court directed programs can only function if information is shared among the members of treatment team and the referral source.
The law restricts disclosures in several ways. First, there is what is called “evidentiary privileges” which protect against court compelled disclosure. Just who is covered under evidentiary privileges varies by state. All states recognize forms of lawyer-client privilege and doctor-patient privilege, while many states recognize psychotherapist-patient and related personnel privilege.
Second, many professional organizations and federal and state governments have ethical codes of conduct that control disclosure of information. While most states have enacted their own confidentiality laws to control disclosure of information relating to drug treatment, most state drug courts are also bound by federal law including Section 290dd-2 of Title 42 of the United States Code which applies to all records relating to “the identity, diagnosis, prognosis, or treatment of any patient” in a substance abuse program.
Third, there are situations in most states where disclosures without the individual’s consent can be made. They include: medical emergencies, crimes on the program premises or against program staff, disclosures to entities having direct administrative control over the program and to qualified service organizations working with the program, and disclosures to outside auditors and researchers.
Finally, in many states there are mandatory disclosure laws including suspected abuse or neglect of a child, dependent or elder abuse, a valid court order to produce covered information, information relating to causes of death, and duty to warn protected third parties.
Therefore, confidentiality must be maintained except under the following circumstances:
1) When a client gives informed consent to disclosure; 2) When a therapist is acting in a court-appointed capacity; 3) When there is suicidal risk or some other life-threatening emergency; 4) When a client initiates litigation against the therapist; 5) When a client’s mental health is introduced as part of a civil action; 6) When a child under the age of 16 is the victim of a crime; 7) When a child requires psychiatric hospitalization; 8) When a client expresses intent to commit a crime that will endanger society or another person; 9) When a client is deemed to be dangerous to him- or herself; 10) When required for third-party billing authorized by the client; and 11) When required for properly utilized fee collection services.
Obtaining informed consent is important at the outset of any therapy or treatment. Informed consent is based upon the principles of full disclosure by the therapist so the client can decide to proceed, and free consent by the client, deciding to engage in treatment without coercion or pressure.
The best practice to follow is to inform the client at the outset of therapy the policies, practices, and procedures that will be followed in treatment, including:
The purposes of the sessions; typical procedures including length of the program and program rules and regulations; possible positive and negative outcomes; costs (if any) of the program; the qualifications and background of the therapist; what behavior to expect from the therapist and other treatment staff; what behavior to expect from the client; the limitations of, and exceptions to, confidentiality; requirements of the treatment program and the referring source; legal and ethical parameters that could impact treatment; information provided third-parties (including employer and the courts); the conditions that might precipitate a referral to another therapist or treatment programs, and available alternative treatments.
The best policy is to have this information in writing and then discuss it with clients and get their written informed consent.
However, the principle of informed, voluntary consent may be compromised or clouded with involuntary or mandatory clients.
Confidentiality laws, most of which date back to the 1970s, were originally enacted to encourage AOD abusers to seek treatment based upon the belief that they will be more likely to enter treatment if they are assured that information about their AOD use will not be disclosed to third parties. Confidentiality laws also encourage AOD users to be open with treatment personnel by prohibiting them from revealing client disclosures to third parties and the general public. However, the modern mandated AOD treatment was developed after these confidentiality laws were enacted and these laws may impede some treatment practices. (38)
Most organizations and courts deal with these confidentiality issues by obtaining a consensual disclosure or waiver from individuals before they begin the program. Consent forms should address the following areas. 1) The purpose for, and limits of, the communication must be indicated on the consent form. This usually means that the information is provided to monitor compliance and performance in treatment including drug test results, attendance at, and compliance with the requirements of, the program, and treatment personnel’s assessment of the person’s progress.
To be valid, the waiver must be in writing, signed and dated by the individual, a stated expiration date, and it must mention the individual’s right to revoke consent (if this is an option—an option that is not usually available in criminal drug court). If the consent form is properly drafted in this way and sufficiently inclusive, federal (and most state) laws will not obstruct the sharing of information among drug court members.
Reconciling the legalistic, reporting, or surveillance role with the helping, therapeutic, or problem-solving role can be difficult for many treatment personnel. Coming to terms with these diverse roles is one of the greatest challenges for therapists and treatment personnel in working with mandatory or involuntary clients.
To be safe from problems in this area, the treatment provider must thoroughly familiarize him/herself with the important pieces of legislation that relate to confidentiality in DOA treatment. At the federal level, this will include CFR 42 Part 2 and the Health Insurance Portability and Accountability Act (HIPAA).
There are, however, also overlapping state statutes with which the clinician must be familiar. This will include statutes that define how client privilege interacts with definitions of the rights of minors (and the age of majority for DOA issues), mandates from the court system, and issues of imminent risk. Since state statutes in these areas supersede or refine federal law (48), it is important for the clinician to have a detailed understanding of relevant statutes in his/her state.
However, even in situations where clients are being encouraged or required to participate in treatment, it is important to practice full disclosure as previously described, and to make sure that clients fully understand the conditions of treatment, reporting requirements of the referral sources (employers and courts), the role you as the therapist will play in these reporting policies, and that their participation is based on informed consent.
In most legal and ethical issues, there are complexities that must be sorted out, and this is certainly true when working with involuntary clients.
Professional maturity means that you are knowledgeable of the current legal and ethical practices in the field, open to questioning of your values and practices, and that you are willing to discuss these issues with knowledgeable colleagues.
One of the ethical dilemmas that treatment personnel face when working with involuntary clients is who they represent. When a client is required to participate in treatment, this changes the nature of the client-therapist relationship to include additional people and organizations to which the therapist has to be responsible in terms of monitoring the progress of the client.
These outside influences have the potential to compromise the client-therapist relationship. Involvement of these other people in the therapeutic relationship needs to be thoroughly discussed with the client, and both parties need to be aware of the potential impact on their therapeutic relationship.
For example, companies and the courts may have different views from therapists and treatment personnel about what it means to be in therapy addressing an AOD problem.
Therapists and other treatment personnel usually take the position that change and recovery is possible, even expected, that the recovery process can take a long time, that effective treatment may mean involving friends and family in the recovery process, and it is often common to have relapses in the overall recovery process.
On the other hand, company and court officials often take a more linear view of recovery, assuming that change is unlikely, recovery needs to take place in a short period of time, AOD use is primarily an individual problem, therapy must focus on the individual, and that relapses are to be seen as failures in the recovery process - and these failures are reportable to them.
Therefore, whereas a therapist may see AOD use after a period of abstinence or controlled use as not unusual in the total recovery process, company and court personnel may require that relapses be reported to them, and the client may face severe consequences - including permanent loss of a job or imposition of a criminal sentence.
If therapists are going to be working with involuntary clients, they need to be comfortable working under these requirements and conditions. Each therapist needs to weigh carefully the advantages and disadvantages of working with involuntary clients and decide for him/herself if he/she wants to work with this client population and the associated requirements.
It is not a viable option to work with these clients and fail to uphold the ethical and legal standards of the profession, or fail to honor the requirements of the referral source and the treatment agency.
This points to the importance of explaining clearly to your clients the nature of your reporting responsibilities to their company or the courts.
By educating clients about their rights and responsibilities, the therapist is empowering his/her clients by helping them to be active participants in the treatment process, as well as beginning to build a trusting relationship.
The best way to handle this is to have the policies and procedures written in a contract that is then signed by both the clients and the therapist.
This concludes our section on confidentiality. We will now turn to some analysis of the effectiveness of mandated and involuntary treatment.
Review Questions Section VI
What are the most different roles for the treatment provider in working with mandated DOA, cases?
What are the two most important legal statutes governing issues of confidentiality in DOA cases?
Mandating bodies (court systems and workplaces) and clinicians approach DOA treatment with some differences in understanding about the treatment process. What are the major differences in this area, and how does this create tension for the work of the treatment provider.