Advanced Ethics: Special Concerns

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1 Advanced Ethics: Special Concerns According to Webster s Dictionary, ethics is defined as the discipline dealing with what is good and bad and with moral duty and obligations - ethics are the principles of conduct governing an individual or group. The subject of ethics and ethical behavior is important to every professional group. The ethical considerations define the way in which a group or profession conduct themselves. Ethical considerations can typically be viewed from three different perspectives: (1) moral/professional judgments; (2) legal considerations; and (3) ethical implications. Moral/professional judgments refer to the individual counselor s own value system. Within the therapeutic relationship, counselors need to ask themselves Do I feel comfortable doing? If a particular situation is morally uncomfortable for the counselor, but still legal and ethical, then the responsibility of the counselor is to help the client obtain the desired service in the most expeditious manner. For example, it is not uncommon to have a client in the chemical dependency field that has been or is currently involved in dealing drugs to support their habit. While the counselor may have strong feelings about this activity, legally and ethically the counselor may not disclose this information to law enforcement authorities. The counselor is obligated to provide services to the client (though a referral to another counselor may be appropriate if the counselor feels they cannot provide adequate service to the client). Legal considerations relate to whether or not there are laws governing a specific activity. For example, counselors must determine whether they are qualified to provide services within their scope of practice. Licensure laws, currently being developed by many states, specify the types of activities the chemical dependency professional may perform. In states that do not provide licensure, certification standards do much of the same thing. Chemical dependency counselors must not engage in activities beyond the scope of their training. For example, a counselor may feel that a client would benefit from marital counseling in their recovery program. While the skill and training of the counselor may allow him or her to provide basic services to the spouse, including educational, awareness building services and referral to such programs as Al- Anon, marital counseling should be performed by a qualified marriage and family therapist. It would be illegal as well as unethical for the chemical dependency counselor to do otherwise. MAADAC Ethics Training 8/02 1

2 Ethical implications refer to the principles set forth by the ethical standards governing a particular profession. When considering ethical implications, the counselor should always remember the following: (1) It is the counselors responsibility to know and understand the ethical principles that guide them, whether they are state or national guidelines; (2) It is necessary to consider all of these ethical principles to determine how they apply to each client the counselor serves; (3) All variables, including legal responsibilities and medical considerations, must be reviewed for each case; (4) Confidentiality is a critical area of concern and this ethical standard is frequently involved in clinical dilemmas - the primary justification for breaking confidentiality occurs when a person is a danger to self or others. (5) Counselors need to be sensitive to the moral and social codes of the community; (6) When making decisions involving ethics, counselors should usually be conservative in their judgment and frequently consult with other treatment professionals; (7) Counselors should always have a keen awareness of their areas of competence and an appreciation of their limitations - regardless of personal belief, a counselor cannot provide every service that a client needs. ETHICAL PRINCIPLES The NAADAC Code of Ethics states that professional alcoholism and drug abuse counselors assert that the ethical principles of autonomy, beneficence and justice must guide their professional conduct. It is, therefore, important to understand what these three central principles mean in examining and implementing the Code of Ethics. AUTONOMY. This is the principle that supports clients independence, freedom and self-determination. Counselors practice this principle by respecting clients values, facilitating clients independence and supporting clients rights to make choices about their own life. BENEFICENCE. This principle relates to the value of doing good. Counselors apply this principle through their commitment to helping others and by promoting what is in the best interest of the client. JUSTICE. This principle relates to fairness and the concept of equal and fair treatment. Counselors practice this principle when they provide the same quality of treatment to all clients without discrimination. MAADAC Ethics Training 8/02 2

3 In addition to these three principles, there are others that are inherent in most ethical codes. OBEDIENCE. This principle pertains to the observance of laws and regulations that govern behavior. Counselors apply this principle by following licensure and certification regulations, agency policies, and legal mandates. COMPETENCE. This principle relates to the value that counselors need to be trained and prepared to provide the services they offer. Counselors practice this principle when they pursue appropriate credentials, training, experience, and supervision, and operate within their scope of practice. FIDELITY. This is the principle that supports honesty and trust. Counselors promote this principle by being trustworthy with clients and the general public, as well as, following through with commitments to clients and others. LOYALTY. This principle pertains to the value of allegiance. Most codes expect the primary loyalty of the professional to be to the client. Counselors apply this principle when they advocate for and actively support clients needs. DISCRETION. This is the principle that values the right to privacy. Counselors promote this by following confidentiality guidelines and privileged communication laws. NONMALEFICENCE. This is the principle of doing no harm. Counselors must avoid any behavior that can cause harm or has the potential to harm a client. MAADAC Ethics Training 8/02 3

4 Self-Inventory This is for your personal awareness and to begin to focus on some of the areas that will be discussed in this course. There is no right or wrong answer and in fact, you may want to answer all of the above or a combination of the answers or create your own. You might benefit by discussing some of your responses in supervision or with a trusted colleague. You may also identify other areas of concern in working with these special issues that you need to discuss with others. 1. If my client stated that he felt I did not understand him because of our different cultural backgrounds, I would: a. Ask him for further clarification b. Seek consultation to improve my knowledge of his culture c. Refer him to a counselor of his own cultural background d. Other: 2. Ethical multicultural counseling means that: a. I understand as much as possible about all other cultures b. I am aware that my worldview may not be the viewpoint of my clients c. I do not counsel clients from other cultures d. Other: 3. I believe that a client who is court-ordered to treatment: a. Is usually unmotivated and more difficult to treat than self-referred clients b. Should not be seen in private practice settings c. Is more compliant with treatment recommendations than most selfreferred clients d. Other: 4. If a client I was treating was on probation and disclosed to me that she had recently committed a crime, I would: a. Contact the probation officer immediately, assuming I had a valid release form b. Contact my lawyer and proceed however he/she advised c. Determine if it was a felony or misdemeanor: report the felony to the probation officer d. Other: 5. I would have difficulty treating a client who had committed: a. Sexual battery/rape b. Kidnapping c. Drug dealing d. Other: MAADAC Ethics Training 8/02 4

5 6. If my sixteen -year old client revealed that she was pregnant and did not want her parents to know, I would: a. Discuss the situation with her and try to determine her reasons for privacy b. Respect her wishes as long as she agreed to seek medical care c. Advise her that I need to contact her parents anyway and why d. Other: 7. If my sixteen-year old client revealed that he had just joined a gang and part of the initiation was to shoplift from a local convenience store, I would: a. Discuss with him making restitution to the store owner b. I would advise him that I need to contact his parents for a family discussion c. I would contact law enforcement authorities d. Other: 8. If my client had AIDS and wanted to discuss physician -assisted suicide, I would: a. Refer her to a spiritual direction counselor b. Listen to her views and then try to persuade her not to pursue this c. Discuss this with her in a neutral, objective manner d. Other: 9. If my client revealed that he had just been diagnosed as HIV positive but was refusing medical treatment, I would: a. Discuss his reasons for refusal and then attempt to educate him and persuade him to seek treatment b. Tell him that I could not work with him and refer c. Respect his decision and not bring it up unless he wanted to discuss it again d. Other: 10. If I was treating an HIV positive client who refused to notify his/her spouse regarding his/her status, I would: a. Discuss my ethical concerns regarding this with a supervisor and probably refer the client b. Contact the spouse anyway, citing duty to warn and protection of their welfare c. Offer to have a conjoint session to help the client discuss this with the spouse d. Other: MAADAC Ethics Training 8/02 5

6 The NAADAC Code of Ethics Regardless of whether a counselor is credentialed by a state s licensure law or by a private associations certification standards, most credentialing bodies have modeled their ethical guidelines after NAADAC s Code of Ethics. These ethical principles were first published in NAADAC s publication, The Counselor, Vol. 5, September, You should already be familiar with these code, but there will be placed here to insure that you have once again reviewed them. These principles are as follows: Principle 1: Non-Discrimination The alcoholism and drug abuse counselor should not discriminate against clients or professionals based upon race, religion, age, sex, handicap, national ancestry, sexual orientation, or economic condition. Principle 2: Responsibility The alcoholism and drug abuse counselor should espouse objectivity and integrity, and maintain the highest standards in the services the counselor offers. a. The alcoholism and drug abuse counselor, as teacher, should recognize the counselor s primary obligation to help others acquire knowledge and skill in dealing with the disease of chemical dependency. b. The alcoholism and drug abuse counselor, as practitioner, should accept the professional challenge and responsibility deriving from the counselor s work Principle 3: Competence The alcoholism and drug abuse counselor should recognize that the profession is founded on national standards of competency that promote the best interests of society, of the client, of the counselor, and of the profession as a whole. The counselor should recognize the need for ongoing education as a component of professional competency. a. The alcoholism and drug abuse counselor should prevent the practice of alcoholism and drug abuse counseling by unqualified and unauthorized persons. b. The alcoholism and drug abuse counselor who is aware of unethical conduct or of unprofessional modes of practice should report such violations to the appropriate certifying authority. c. The alcoholism and drug abuse counselor should recognize boundaries and limitations of counselors competencies and not offer services or use techniques outside of these professional competencies. MAADAC Ethics Training 8/02 6

7 d. The alcoholism and drug abuse counselor should recognize the effect of professional impairment on professional performance and should be willing to seek appropriate treatment for oneself or for a colleague. The counselor should support peer assistance programs in this respect. Principle 4: Legal Standards and Moral Standards The alcoholism and drug abuse counselor should uphold the legal and accepted moral codes which pertain to professional conduct. a. The alcoholism and drug abuse counselor should not claim either directly or by implication, professional qualifications/affiliations that the counselor does not possess. b. The alcoholism and drug abuse counselor should not use the affiliation with the National Association of Alcoholism and Drug Abuse Counselors for purposes that are not consistent with the stated purposes of the Association. c. The alcoholism and drug abuse counselor should not associate with or permit the counselor s name to be used in connection with any services or products in a way that is incorrect or misleading. d. The alcoholism and drug abuse counselor associated with the development or promotion of books or other products offered for commercial sale should be responsible for ensuring that such books or products are presented in a professional and factual way. Principle 5: Public Statements The alcoholism and drug abuse counselor should respect the limits of present knowledge in public statements concerning alcoholism and other forms of drug addiction. a. The alcoholism and drug abuse counselor who represents the field of alcoholism counseling to clients, other professionals, or to the general public should report fairly and accurately the appropriate information b. The alcoholism and drug abuse counselor should acknowledge and document materials and techniques used. c. The alcoholism and drug abuse counselor who conducts training in alcoholism or drug abuse counseling skills or techniques should indicate to the audience the requisite training/qualifications required to properly perform these skills and techniques. MAADAC Ethics Training 8/02 7

8 Principle 6: Publication Credit The alcoholism and drug abuse counselor should assign credit to all who have contributed to the published material and for the work upon which the publication is based. a. The alcoholism and drug abuse counselor should recognize joint authorship, major contributions of a professional character, made by several persons to a common project. The author who has made the principal contribution to a publication should be identified as a first listed. b. The alcoholism and drug abuse counselor should acknowledge in footnotes or an introductory statement minor contributions of a professional character, extensive clerical or similar assistance, and other minor contributions. c. The alcoholism and drug abuse counselor should acknowledge, through specific citations, unpublished, as well as published material, that has directly influenced the research or writing. d. The alcoholism and drug abuse counselor who compiles and edits for publication the contributions of others should list oneself as editor, along with the names of those others who have contributed. Principle 7: Client Welfare The alcoholism and drug abuse counselor should respect the integrity and protect the welfare of the person or group with whom the counselor is working. a. The alcoholism and drug abuse counselor should define for self and others the nature and direction of loyalties and responsibilities and keep all parties concerned informed of these commitments. b. The alcoholism and drug abuse counselor, in the presence of professional conflict, should be concerned primarily with the welfare of the client. c. The alcoholism and drug abuse counselor should terminate a counseling or consulting relationship when it is reasonably clear to the counselor that the client is not benefiting from it. d. The alcoholism and drug abuse counselor, in referral cases, should assume the responsibility for the client s welfare either by termination by mutual agreement and/or by the client becoming engaged with another professional. In situations when a client refuses treatment, referral, or recommendations, the alcoholism and drug abuse counselor should carefully consider the welfare of the client by weighing the benefits of continued treatment or termination and should act in the best interest of the client. MAADAC Ethics Training 8/02 8

9 e. The alcoholism and drug abuse counselor who asks a client to reveal personal information from other professionals or allows information to be divulged should inform the client of the nature of such transactions. The information released or obtained with informed consent should be used for expressed purposes only. f. The alcoholism and drug abuse counselor should not use a client in a demonstration role in a workshop setting where such participation would potentially harm the client. g. The alcoholism and drug abuse counselor should ensure the presence of an appropriate setting for clinical work to protect the client from harm and the counselor and the profession from censure. h. The alcoholism and drug abuse counselor should collaborate with other health care professional(s) in providing a supportive environment for the client who is receiving prescribed medications. Principle 8: Confidentiality The alcoholism and drug abuse counselor should embrace, as a primary obligation, the duty of protecting the privacy of clients and should not disclose confidential information acquired, in teaching, practice, or investigation. a. The alcoholism and drug abuse counselor should inform the client and obtain agreement in areas likely to affect the client s participation including the recording of an interview, the use of interview material for training purposes, and observation of an interview by another person. b. The alcoholism and drug abuse counselor should make provisions for the maintenance of confidentiality and the ultimate disposition of confidential records. c. The alcoholism and drug abuse counselor should reveal information received in confidence only when there is clear and imminent danger to the client or to other persons, and then only to appropriate professional workers or public authorities. d. The alcoholism and drug abuse counselor should discuss the information obtained in clinical or consulting relationships only in appropriate settings, and only for professional purposes clearly concerned with the case. Written and oral reports should present only data germane to the purpose of the evaluation and every effort should be made to avoid undue invasion of privacy. e. The alcoholism and drug abuse counselor should use clinical and other material in classroom teaching and writing only when the identity of the persons involved is adequately disguised. MAADAC Ethics Training 8/02 9

10 Principle 9: Relationships The alcoholism and drug abuse counselor should inform the prospective client of the important aspects of the potential relationship. a. The alcoholism and drug abuse counselor should inform the client and obtain the client s agreement in areas likely to affect the client s participation including the recording of an interview, the use of interview material for training purposes, and/or observation of an interview by another person. b. The alcoholism and drug abuse counselor should inform the designated guardian or responsible person of the circumstances that may influence the relationship, when the client is a minor or incompetent. c. The alcoholism and drug abuse counselor should not enter into a professional relationship with members of one s own family, intimate friends or close associates, or others whose welfare might be jeopardized by such a dual relationship. d. The alcoholism and drug abuse counselor should not engage in any type of sexual activity with a client. Principle 10: Interprofessional Relationships The alcoholism and drug abuse counselor should treat colleagues with respect, courtesy and fairness, and should afford the same professional courtesy to other professionals. a. The alcoholism and drug abuse counselor should not offer professional services to a client in counseling with another professional except with the knowledge of the other professional or after the termination of the client s relationship with the other professional. b. The alcoholism and drug abuse counselor should cooperate with duly constituted professional ethics committees and promptly supply necessary information unless constrained by the demands of confidentiality. Principle 11: Remuneration The alcoholism and drug abuse counselor should establish financial arrangements in professional practice and in accord with the professional standards that safeguard the best interests of the client, of the counselor, and of the profession. a. The alcoholism and drug abuse counselor should consider carefully the ability of the client to meet the financial cost in establishing rates for professional services. MAADAC Ethics Training 8/02 10

11 b. The alcoholism and drug abuse counselor should not send or receive any commission or rebate or any other form of remuneration for referral of clients for professional services. The counselor should not engage in fee splitting. c. The alcoholism and drug abuse counselor in clinical or counseling practice should not use one s relationship with clients to promote personal gain or the profit of an agency or commercial enterprise of any kind. d. The alcoholism and drug abuse counselor should not accept a private fee or any other gift or gratuity for professional work with a person who is entitled to such services through an institution or agency. The policy of a particular agency may make explicit provisions for private work with its clients by members of its staff, and in such instances the client must be fully apprised of all policies affecting the client. Principle 12: Societal Obligations The alcoholism and drug abuse counselor should advocate changes in public policy and legislation to afford opportunity and choice for all persons whose lives are impaired by the disease of alcoholism and other forms of drug addiction. The counselor should inform the public through active civic and professional participation in community affairs of the effects of alcoholism and drug addiction and should act to guarantee that all persons, especially the needy and disadvantaged, have access to the necessary resources and services. The alcoholism and drug abuse counselor should adopt a personal and professional stance that promotes the well-being of all human beings. MAADAC Ethics Training 8/02 11

12 ETHICAL AND PROFESSIONAL ISSUES FOR COUNSELORS The ethical principles listed by NAADAC are phrased in general terms. It is therefore essential for the alcohol and drug abuse counselor to have a more detailed understanding of the responsibilities and consequences associated with some of these principles and, in some cases, be familiar with laws that relate to them. In addition, alcohol and drug abuse counselors must be aware of several professional issues relevant to alcohol and drug abuse field and the mental health field in general. Patient Rights There have been a number of legal cases related to the rights of involuntarily committed patients. In the case of Wyatt v. Stickney, a U.S. District Court ruled that involuntarily committed patients are constitutionally entitled to treatment; commitment without such treatment constitutes indefinite punishment and violates the fundamentals of due process. Moreover, involuntarily committed patients must be treated in the least restrictive environment available. In a related issue, some states have passed laws that give involuntarily committed patients the right to refuse treatments associated with negative side effects and the right to refuse to take psychoactive drugs. In some ways, the substance abuser does not enjoy the same legal protections as a person who has been involuntarily committed. Many users are pressured by the court, their employers, or even family members to undergo voluntary treatment. Although these patients sign voluntary consent to treatment forms, they often do not have the opportunity to give truly informed consent. Of course, chemical dependencies are often characterized by denial and self-delusion. and in these cases it is almost certainly necessary to use some coercion, especially in the early stages of treatment, to get help to users who pose a danger to themselves or others. However, substance abuse professionals need to take it upon themselves to offer as much freedom of choice and the least restrictive treatment alternatives possible. A problem often exists in that the decision as to where and how the patient should be treated is not always undertaken with the patient s best interests in mind. For instance, in some situations, the person who forces a patient into a treatment program may be the person who runs the program. In addition, employee organizations sometimes make contractual arrangements with a single treatment facility, and some employers and unions have gone into the business of providing treatment for their own employees. Such arrangements can potentially create conflicts of interest, reduce patient choice, and lower the quality of care provided. MAADAC Ethics Training 8/02 12

13 In the past two year, the field has seen a significant loss of private care facilities. Many abuses were uncovered by various states in1992 that suggested some of the larger national treatment chains were involved in questionable practices. Inappropriate admissions, failure to provide the least restrictive (and less costly) level of care, paying counselors for referrals, and inappropriate lengths of stay seemed to be acceptable practice. As a result, newer, more stringent guidelines have been developed by many states, and several of the national chains have closed facilities due to declining revenue and increased litigation costs. While there exists a need to allow clients to choose among several acceptable treatment facilities, choices are becoming fewer. Substance abuse professionals should act in line with provisions 7a and 7b of NAADAC s Ethical Code, which state respectively that The alcoholism and drug abuse counselor should define for self and others the nature and direction of loyalties and responsibilities and keep all parties concerned informed of these commitments" and The alcoholism and drug abuse counselor, in the presence of professional conflict should be concerned primarily with the welfare of the client. Thus, in situations where there is only one source of treatment for in a particular place or for a particular organization, counselors should strive to ensure that clients are informed as to the nature of any agreements involved, that treatment is sufficiently individualized, and that treating facilities are checked intermittently to the quality and timeliness of care. In addition, there should be no opportunity for the counselor to profit from his/her referral in any way. Confidentiality of Alcohol and Drug Abuse Patients Confidentiality between a counselor and a client is crucial to the success of the counseling relationship. The client s beliefs about confidentially will determine the extent and the nature of the information revealed during the course of care. The importance of confidentiality is acknowledged by the NAADAC Code of Ethics in the preamble of Principle 8, which states, The alcoholism and drug abuse counselor should embrace, as a primary obligation, the duty of protecting the privacy of clients and should not disclose confidential information acquired, in teaching, practice, or investigation. The basic principle of confidentiality is that no information divulged by patients in the course of treatment even the fact that a particular person is (or is not) a patient in a treatment facility may be revealed to an outside source without the written consent of the patient when he/she is rational and drug-free. Professional handling of information means that it will never be divulged in a careless, casual, or irresponsible way, discussed in social conversations, or revealed in casual inquiries. The privacy of persons receiving alcohol and drug abuse prevention and treatment services is protected by federal laws. The legal citation for these laws is 42 U.S.C. 290dd-3 and ee-3. The regulations directing the implementation of these statutes were issued in 1975 and revised in They are found in the Code of Federal Regulations: 42 C.F.R. Part 2. A complete copy of these regulations can be found in Appendix C. MAADAC Ethics Training 8/02 13

14 Many States also have confidentiality laws that apply to substance abuse treatment. These may afford individuals even greater privacy than the federal law. However, State laws may not be less stringent than federal laws. If they are, the federal law (or the more rigorous one) prevails. Violation of the regulations may result in fines up to $500 for a first offense and up to $5,000 for subsequent offenses. The federal confidentiality law applies to all programs providing alcohol or drug abuse diagnosis, treatment, or referral for treatment that are federally assisted. Included are the following: programs receiving any type of federal funding; programs receiving tax exemption status through the Internal Revenue Service; programs authorized to conduct business by the federal government, such as those licensed to provide methadone or those certified as Medicare providers; and programs conducted directly by the federal government or State or local governments that receive federal funds. The primary intent of the confidentiality law is to prevent disclosure of information "both written records and verbal information" that would identify a person as a patient receiving alcohol or drug treatment. This protection is even extended to those who have applied, but were not admitted to the program for treatment, and to former patients and deceased patients. Not only are programs prohibited from disclosing information, except under certain conditions to be discussed later, but they also are not allowed to verify information that is already known by the person making an inquiry. According to these regulations, the very fact that a person is a patient in a treatment facility cannot be revealed, or denied, without the patient s express written consent. Thus, in response to inquiries about whether a particular person is a patient in such a facility, one can only answer according to Federal law, I can neither confirm nor deny the presence of any client in our facility. In addition, these regulations set forth a strict standard for signed consents to disclose information - consent forms must specify what information will be disclosed, to whom the disclosure will be made, and set a time limit for such release of information. Too often, release of information forms used by facilities are too general, in essence granting a blanket release of what information is released without regards to time limitations. This is never appropriate. Patients are entitled to notification of the federal confidentiality laws and regulations. Programs should provide a written summary of these provisions upon admission. The written summary should include: information about the circumstances in which disclosure can be made without the patient's consent; a statement that violations of the regulations may be reported as a crime; MAADAC Ethics Training 8/02 14

15 a warning that committing or threatening a crime on the program's premises or against program staff can result in release of information; notification that the program must report suspected child abuse or neglect; and reference to the federal law and regulations. Programs must keep patient records in a secure room, a locked file cabinet or other similarly protected places. There should be written procedures concerning who has access to patient records. A single staff member, often the director, should be designated to handle inquiries and requests for information about patients. Confidentiality vs. Privilege Privilege is a legal term that refers to an individual s right not to have confidential information revealed in court or other legal proceedings. Most states have laws that establish the professional-patient privilege. Thus, while the legal concept of privilege is similar to the ethical concept of confidentiality, it is much narrower in scope and applies specifically to situations involving court or other legal proceedings. Ordinarily, the client is the holder of the privilege, which means that a therapist cannot reveal confidential information in a legal proceeding unless the privilege has been waived by the client. Privilege is waived when the client has consented to disclosure of the information, when the client has disclosed a significant part of the information to a third person, and in certain legally-defined situations, which vary from state to state, such as when a client sues a counselor. Once the client has waived privilege, the therapist has no grounds for withholding relevant information if asked to do so in court. Even though chemical dependency counselors have a confidential relationship with their clients, most states to not view this as privileged. Thus, when a chemical dependency counselor is subpoenaed to testify in court or release a patient s records to the court, they usually cannot be excused from these obligations under the laws relating to privilege. In some states, the law regarding privilege does apply to a person whom the patient reasonably believes to be a licensed professional. Thus, under this stipulation of law, communication between a patient and a licensed substance abuse counselor may be privileged in some cases and in some states. It is the responsibility of the counselor to be aware of state laws regarding privilege. Exceptions to the General Confidentiality Conditions Sometimes the good of the client, the protection of the public, and/or the law require or permit a substance abuse counselor to breach a client s confidentiality. The fact that confidentiality is not an absolute requirement is reflected by Principle 8c of the NAADAC s Code of Ethics, which states that The alcoholism and drug abuse counselor should reveal information received in confidence only when there is clear and imminent danger to the client or to other persons, and then only to appropriate professional workers or public authorities. Such issues as suicide, child abuse, or elderly abuse would be grounds for breaching confidentiality. MAADAC Ethics Training 8/02 15

16 Although the degree to which one should, if ever, breach confidentiality in the counseling relationship is a matter of great controversy, there is general agreement on one point: the client has a right to know the limits that may exist with regard to the confidentiality of information discussed in treatment. Ideally, a discussion of the limits of confidentiality should take place during the intake or orientation process in the counseling relationship. In addition, a facilities staff policy manual should indicate the limits of confidentiality. Under certain conditions, programs may disclose information about persons receiving or applying for substance abuse treatment. These are described in the following sections. Patient Consent Patients may sign a consent form allowing for the release of information. However, consent forms must contain specific information, including the following: program name; person or individual to receive the information; patient's name; purpose or need for the disclosure; the specific amount and kind of information to be released; a statement that the patient may revoke the consent at any time; date, event, or condition upon which the consent will expire; signature of the patient; and date upon which the consent is signed. Only information that is necessary to accomplish the purpose stated in the form may be released. Even if a properly-signed consent form is in force, programs are allowed discretion about disclosing information, unless the form is accompanied by a subpoena or court order. It is usually necessary for patients to sign separate consent forms for each type of disclosure and for each person or organization to whom information is to be released. However, if similar information will be released to the same person/organization during the period the consent form is valid, signing a form for each release is not required. This might occur with funding sources requiring verification of treatment provided over the course of a person's enrollment in a treatment program. On the other hand, if a different type of information is requested by the same person/organization, a new consent form would be required. Patients may revoke their consent at any time, either verbally or in writing. This does not require the program to retrieve information disclosed when the consent form was valid. If a patient revokes a consent form permitting disclosure of information to a third- party payer, the program still may bill the payer for any services provided during the time the consent form was valid. However, after revocation of consent, the program may not MAADAC Ethics Training 8/02 16

17 release information to third-party payment sources. If services continue to be provided, the program risks not receiving reimbursement. The expiration date of consent forms should be at a time that is reasonably necessary to achieve the purpose for which they are signed. Rather than a specific date, consent forms may expire when a certain event or condition occurs. For example, if information is released to a physician the patient will see one time, the consent form may indicate that it is valid until the patient's appointment with the doctor. On the other hand, a consent form to provide verification of enrollment in the treatment program for an employer, who has placed the person on probation pending treatment, may be in effect until the end of the probationary period. State laws are relied upon to determine the definition of minors and whether or not the consent of a parent (or guardian or other person legally responsible for the minor) is required for them to obtain substance abuse treatment. The regulations concerning consent for release of information follow State laws: If State law requires parental consent for treatment, then consent of both the minor patient and the parent (or guardian) must be obtained to disclose information. However, regardless of the requirement for parental consent, programs must always obtain the minor's consent for disclosure. The parent's signature alone is not sufficient. In States requiring parental approval for the treatment of minors, programs must obtain the minor's consent before contacting a parent/guardian to obtain his or her permission for treatment. However, if the program director determines that certain conditions exist, s/he may contact the parent/ guardian without the minor's consent. In such cases, all of the following conditions must be present: the minor is not capable of making a rational choice because of extreme youth or mental or physical impairment; the situation presents a threat to the life or physical well-being of the youth or another person; and the risk may be reduced by communicating relevant facts to the minor's parent/guardian. If these conditions are not present, the program personnel must inform the minor of his or her right to refuse consent to communicate with a parent/guardian. However, the program cannot provide services without such communication and parental consent. If State law does not require parental permission for treatment, programs still may withhold services from minors who will not authorize a disclosure so the program can obtain financial reimbursement for treatment, as long as this does not violate a State or local law. Similarly, for adult patients who have been adjudicated incompetent, consent for disclosure may be made by the person's guardian or authorized representative. In situations in which a person has not been adjudicated incompetent but the program director determines that his or her present medical condition interferes with the ability to MAADAC Ethics Training 8/02 17

18 understand and take effective action, the director may authorize disclosure without patient consent only to obtain payment for services from a third-party payment source. For deceased patients, disclosure may be authorized by the executor or administrator of his/her estate, spouse, or a family member. Without such consent, programs may make limited disclosures to comply with State or federal laws concerning collection of vital statistics or to respond to inquiries into the cause of death. Any time a program releases information about a patient, it must be accompanied by a written statement indicating that the information is protected by federal law and the recipient cannot make further disclosure unless permitted by the regulations. At times, patients may consent to disclosure of information to employers. Often, this can be limited to verification of treatment status or a general evaluation of progress. The program should limit disclosure to only information that is related to the particular employment situation. Persons may be required to participate in treatment as a condition of probation or parole, sentence, dismissal of charges, release from incarceration, or other criminal justice dispositions. These patients also are entitled to protection of confidentiality, but some special qualifications apply concerning the duration and revocability of consent. A sample consent form for release of information for a criminal justice system referral is shown on the next page. Whenever a person moves from one phase of the criminal justice system to another, a substantial change in status occurs. Until such a change occurs, consent forms cannot be revoked. Criminal justice system consent forms can be irrevocable so that individuals who agree to treatment in lieu of prosecution or punishment can be monitored. However, the irrevocability of consent ends with the final disposition of the criminal proceedings. Information obtained by criminal justice agencies can be used only with respect to a particular criminal proceeding. It may be advisable for judges or criminal justice agencies to require that the individual sign the necessary consent forms before referral to a treatment program. If not, and the program is unable to obtain the individual's consent for disclosure, it may be prevented from providing information to the criminal justice agency that referred the patient to the program. Treatment programs are allowed to apprise criminal justice agencies, without obtaining patient consent, if a person referred for treatment by such agencies fails to apply for or receive services from the program. Because of the potential for abuse of methadone, these programs must take precautions that patients are not enrolled in multiple programs. Patients can be required to sign a consent form before they enter treatment to release information to a central registry. If the registry receives information about the same person in more than one program, each program may be notified so the problem can be resolved. Such consent remains in effect as long as the patient is enrolled in the program. MAADAC Ethics Training 8/02 18

19 With a proper consent form, programs may release information to a patient's attorney. However, the program may use discretion to limit its response. Some programs may be concerned about potential lawsuits, but if they refuse to disclose information, attorneys may subpoena the records. Internal Communications Information about a patient may be shared among staff within a program only if there is a legitimate need for them to know it. When there is a need for internal communications, information that is shared always should be specifically related to the provision of substance abuse services being delivered. When a program is part of a larger organization, such as a general hospital, community mental health center, or school, necessary information may be disclosed to other departments, such as central billing or medical records. However, any information that is not necessary to other departments should not be disclosed. Releasing Information to Other Professionals Releasing information to professionals outside of a treatment setting can pose a number of ethical difficulties for counselors. One reality of good clinical care is that in many situations, clients are referred from one professional or agency to another for testing or special services, or for follow-up care. Sharing of information among professionals or agencies is often in the best interest of the client and, indeed, is necessary to bring the optimum resources to aid the client s recovery. Many times, information is also shared in this way with spouses, parents, teachers, and other significant people. This kind of information sharing should be done only with the client s full knowledge and informed consent. Disclosures Without Identification of Patients Programs may release information that does not identify an individual as a substance abuser or verify someone else's identification of a patient. Reports of aggregate data about a program's participants may be provided. Individual information may be communicated in a manner that does not disclose that the person has a substance abuse problem. For example, the program may disclose that a person is a patient in a larger organization (e.g., general hospital, community mental health center, school) without acknowledging that s/he has a substance abuse problem. Information may be disclosed anonymously without identifying either the individual's status as a substance abuse patient or the name of the program. Finally, an individual's case history may be reported anonymously, provided information about the patient and the agency are disguised sufficiently that the person's identity cannot be determined by a reader. Medical Emergencies In a situation that poses an immediate threat to the health of the patient or any other individual, and requires immediate medical intervention, such as a dangerous drug MAADAC Ethics Training 8/02 19

20 overdose or an attempted suicide, necessary information may be disclosed to medical personnel. Such a disclosure must be documented in the patient's records, including the name and affiliation of the person receiving the information, the name of the person making the disclosure, the date and time of the disclosure, and the nature of the emergency. Programs should ask participants in advance to indicate a person to be notified in the event of an emergency, and the patient should be asked to sign a consent form allowing the program to notify the named person if an emergency should arise. Even without patient consent, information may be disclosed to the federal Food and Drug Administration if an error has been made in packaging or manufacturing a drug used in substance abuse treatment and this may endanger the health of patients. Court Orders State and federal courts may issue orders authorizing programs to release information that otherwise would be unlawful. However, certain procedures are required when such court orders are issued. A subpoena, search warrant or arrest warrant alone is not sufficient to permit a program to make a disclosure. First, a program and a patient whose records are sought must be given notice that an application for the court order has been made. The program and the individual must have an opportunity to make an oral or written statement to the court about the application. If the purpose of the court order is to investigate or prosecute a patient, it is only necessary to notify the program. Before an order is issued, there must be a finding of good cause for the disclosure. If the public interest and need for disclosure outweigh possible adverse effects to the individual, the doctor-patient relationship, and the program's services, the order may be issued. Information that is essential for the purpose of the court order is all that may be released. Only persons who need the information may receive it. A court order may require disclosure of confidential communications if one of the following conditions exists: disclosure is necessary to protect against a threat to life or of serious bodily injury; disclosure is required to investigate or prosecute an extremely serious crime; or disclosure is necessary in a proceeding in which the patient has already provided evidence about confidential communications. Before a court order can be issued to release patient information for a criminal investigation or prosecution, five criteria must be met. These are: 1. the crime is extremely serious (e.g., threatening to cause death or serious injury); 2. the records sought will probably contain information that is significant to the investigation or prosecution of the crime; 3. there is no other feasible way to acquire the information; 4. the public interest in disclosure outweighs any harm to the patient, doctor-patient relationship, and the agency's ability to provide services; and MAADAC Ethics Training 8/02 20

21 5. the program has an opportunity to be represented by independent counsel when law enforcement personnel seek the order. Ethical responsibilities regarding confidentiality often come into direct conflict with legal requirements when a counselor or agency is served with a subpoena (a summons to appear in court or release records to the court). Subpoenas may require a person to appear to give testimony or to bring documents to a hearing. Although they may be signed by a judge or other legal officials, subpoenas are not the type of court order required by the confidentiality regulations. Thus, federal confidentiality laws and regulations prohibit treatment programs from responding to subpoenas by disclosing information concerning current or former patients. However, if the person about whom the information is requested signs a proper consent form authorizing the release, the program may do so. If a court order is issued after giving the program and patient an opportunity to be heard, and after making a good cause determination, treatment programs may respond to subpoenas. In most cases, any part of a client s formal file or record can be subpoenaed and placed in evidence in a court of law. Counselors should be aware that such notes or reports are not completely private. Caution should be taken when entering speculative remarks or assigning labels to clients. If a counselor wishes to maintain privacy of certain interview notes or other case materials, he/she should address notes as memoranda to myself and not include them in the formal record. Such memoranda are not generally subjects to subpoena although a counselor may be ordered in court to testify about their contents. Various authorities have attempted to resolve this complex issue. The following guidelines are offered to chemical dependency counselors if their records are subpoenaed: 1. Never ignore a subpoena - but this does not mean that you automatically respond by releasing the information being requested; 2. Contact the lawyer who has issued the subpoena and determine the nature of the subpoena (e.g., does it require attendance by the therapist and/or production of records?); 3. After talking the matter over with the attorney, it may become apparent to the lawyer that the information contained within your records would not be helpful to the matter - in such cases, you will probably be asked to destroy the subpoena and you will not have to follow its request; 4. If the subpoena is requesting records protected by the federal confidentiality guidelines covering chemical dependency information, a subpoena will not be sufficient to force releasing information - a court order, based upon a hearing, will have to be issued before the records could be released; 5. Regardless of the nature of the subpoena, therapists should initially assert the privilege not to reveal confidential information, if this is an available option - MAADAC Ethics Training 8/02 21

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