Articles Confidentiality Revisited: A Response to Manhal-Baugus (1 996) Kevin Doyle

Confidentiality is an important ethical and legal concept for chemical dependency counse- lors and their clients. This article reviews the issues relating to confidentiality raised by Manhal-Baugus (1996), identifies several problem areas from that 1996 article, and offers additional information about confidentiality not included in the earlier article. Chemical dependency counselors are urged to consider the federal law covering the confidentiality of alcohol and drug abuse patient records in their practice.

I n a recent issue of the Journal ofAddictions & Oflender Counseling (JAOC), Manhal-Baugus (1996) presented a solid summary of legal and ethical requirements relating to confidentiality of which chemical dependency coun-

selors should be aware. However, the article neglected to cover several important points, and several misleading statements are in need of clarification.

Exploring the ramifications of the principle of confidentiality for chemical de- pendency counselors is indeed important to the practitioner. However, errors in this area can be critical, and a response to the article is warranted. In the current article, I attempt to highlight the more important areas that are in need of review. Following the sound approach of Manhal-Baugus’s article, which divided confi- dentiality issues into two groups (legal and ethical), I cover several areas from each.

LEGAL ISSUES

Manhal-Baugus (1 9%) correctly identified several of the legal exceptions to confi- dentiality as the Code of Federal Regulations (1994) provides. Unfortunately, her review was not comprehensive because five significant legally permitted exceptions were omitted. Each one is briefly examined in the following section.

Omitted Exceptions

Qualijed service organizations (QSOs). The Code of Federal Regulations (1 994) permits an explicit exception to the provisions of confidentiality when a chemical

Keuin Doyle is a doctoral candidate in the Counselor Education Department at the Uniuersity of Virginia, Charlottesuille. Correspondence regarding this articleshould besent to Keuin Doyle, 1216Raintree Driue, Charlottesuille, VA 22901-0906 (e-mail: ks&c@uirginia.edu).

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dependency counselor or program engages in a contractual relationship with what is called a“qua1ified service organization,” which is defined as “a person or agency that provides services to the program such as data processing, dosage preparation, laboratory analyses, vocational counseling, or legal, medical, accounting, or other professional services” (p. 47). The regulation specifies that the contractual agree- ment must include a prohibition on the QSO of redisclosure of confidential information without client consent. Although at first glance this may seem like a minor exception, counselors and programs frequently and routinely contract with organizations ranging from billing services to medical laboratories, and such groups would clearly have access to confidential information. This exception covers such contractual relationships and provides both protection for the counselor and the procedures to be followed.

Patientlclient crimes against programlstaff. A second important omission cov- ers the occurrence of patient or client crimes committed while on program pre- mises or against program staff (Code of Federal Regulations, 1994). Clearly the regulations were not enacted to permit clients or patients to hide behind confi- dentiality restrictions and to avoid prosecution after engaging in criminal activity while participating in a treatment program activity-for example, by assaulting the counselor or another client in group. This exception allows the chemical de- pendency counselor to report patient or client crimes on program premises or against program personnel to the appropriate authorities and is a significant, al- beit somewhat obvious, necessity.

Internal program communications. A third omission, again somewhat obvious but also significant, has to do with internal program communications. With chemical dependency treatment often provided by a team of professionals, it is important for individuals to be able to communicate with other members of the team about clients’ clinical issues. The regulations (Code of Federal Regulations, 1994) per- mit such communication among individuals who have a need for the information.

Client consent. Although it is somewhat implied in the Manhal-Baugus ( 1 996) article, client consent nonetheless deserves explicit mention in the current article as another legal exception to confidentiality. With the client’s written consent, the chemical dependency counselor is permitted to disclose whatever information the client approves, ranging from presence in treatment to a full report of treat- ment progress or history. Furthermore, one may argue that the ethical principle of autonomy would dictate not only that such a disclosure may be made, but that it should be made as well.

Nonpatient identifying information. Finally, Manhal-Baugus ( 1996) did not cover the somewhat troubling exception delineated in the Code of Federal Regulations (1994) that allows the chemical dependency counselor or pro- gram to make disclosures that do not identify the client or patient as partici- pating in a chemical dependency treatment program. It is not difficult to imagine how this exception might be abused, such as a counselor who avoids using a patient’s name but is not as vigilant in avoiding the use of other unique pa- tient-identifying characteristics. However, it exists and deserves mention and possible future discussion.

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Misleading and Incorrect Exceptions

Subpoenas. Perhaps the most worrisome exception put forth by Manhal-Baugus (1996) was that of subpoenas, the discussion of which seemed to be intertwined with and confused with a review of the concept of privileged communication. Contrary to Manhal-Baugus’s contention that “subpoenas are the third situation in which con- fidentiality may be legally breached,” (Manhal-Baugus, 1996, p. 6), the Code of Fed- eral Regulations (1994) clearly prohibits the chemical dependency counselor from responding to a subpoena and mandates, instead, that a court order is required for disclosure. Far from being a subtle distinction, such a difference is profound in the legal system. Confidentiality: A Guide to the Federal Law and Regulations published by the Legal Action Center (1995) covers the specific requirements for such a court order, including that it must be signed by a judge and not the clerk of the court. Manhal-Baugus’s error is extremely important; chemical dependency coun- selors may risk jeopardizing their clients’ confidentiality and their own compliance with federal law-not to mention relevant codes of ethics-by releasing information on the receipt of a subpoena, as opposed to the court order the law requires.As Manhal- Baugus (1 996) recommended, consultation with an attorney on receipt of such court documents requesting release of client information is indeed advisable.

Third-party payers. Manhal-Baugus (1 996) also asserted that third-party payers were another exception to confidentiality. By itself, this is a misleading state- ment. All client information that is released to a third-party payer needs to be approved by the client through a written release; this was not explicitly stated by Manhal-Baugus. Such a release is the true exception. Third-party payers are.no more entitled to confidential client information than anyone else. The chemical dependency counselor or program certainly needs to advocate for the client and assist with reimbursemenVpayment required, but not at the expense of confiden- tiality. The standard dictum that “the client owns the record,” or at least the infor- mation contained in the record (Anderson, 1996), should be followed. Problems in this area should be addressed in consultation with the client, who holds the ultimate right to approve or disapprove any release and may be the one to expe- rience consequences such as the denial of coverage if insufficient information is released to process a claim. Such decisions rightly belong to the client, not the counselor or program. Duty to warn. Finally, the duty to warn was also incorrectly identified as a legal

exception to confidentiality for substance abuse counselors. In fact, such an ex- ception is glaringly missing from the federal regulations (Code of Federal Regu- lations, 1994). Although the duty to warn may indeed be a justifiable, ethical exception to confidentiality, it is not one of the permissible legal exceptions ac- cording to the federal law. However, the chemical dependency counselor should indeed consider the duty implied by the Tarasoff v. Regents of the University of California (1976) case, which is a legal precedent and not a law as Manhal-Baugus (1996) asserted. As the Legal Action Center (1995) aptly stated:

The careful reader will have noticed that there is an apparent conflict between the federal regulations and the Tarasoff case. The federal regulations prohibit the type of disclosure

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that state courts are requiring, unless the disclosure is made pursuant to a court order or is made without identifying the individual who threatens to commit the crime as a patient. Moreover the regulations make it clear that they override any state law that conflicts with them. . . . A program that learns that a patient is threatening violence to a particular indi- vidual or individuals may be well advised to seek a court order permitting a report or to make a report without revealing patient-identifying information. If program staff believe there is clear and imminent danger to a particular person, it is probably wise to err on the side of making an effective report about the danger. (pp. 58-59)

Clearly, then, the duty to warn as an exception to confidentiality seems well warranted and justified; however, to state that it is a legally permitted one is not fully accurate.

ETHICAL ISSUES

Manhal-Baugus (1996) used the 1988 Ethical Standards of the American Coun- seling Association (ACA, formerly AACD) and the 1987 Code of Ethics of the National Association of Alcoholism and Drug Abuse Counselors (NAADAC) in her discussion of ethical issues and exceptions to confidentiality. Given that both associations had recently published revisions (ACA, 1995; NAADAC, 1995a), it is unfortunate that the older versions were used. Both codes were revised signifi- cantly, including the sections covering confidentiality. In addition, NAADAC was identified as “the governing body that certifies individuals as addictions counse- lors” (Manhal-Baugus, 1996, p. 9), when in fact it is a membership association that issues one of many certifications available to the chemical dependency coun- selor. Manhal-Baugus also stated that NAADAC supports the concept of volun- tary certification of addiction counselors. In and of itself, however, this statement is misleading as well; the association (NAADAC, 1995b) issued a position state- ment in 1995 endorsing the concept of mandatory licensure for addiction coun- selors at the state level.

Ethical Exceptions

Manhal-Baugus (1 996) correctly identified two situations in which the chemical dependency counselor would be justified in breaking confidentiality: suicidal threats and danger to self or others. However, her discussion of the latter was misleading and may have provided excessive opportunity for disclosure, especially for counselors with less experience. Manhal-Baugus claimed, “If a client is generally dangerous but a specific victim cannot be identified, a counselor is ethically justified in choosing to breach confidentiality” (p. 10). The phrase “generally dangerous” is quite trouble- some, here, and would not appear to meet the requirement that a client must pose an imminent threat to an identifiable victim (ACA, 1995; Anderson, 1996). Moreover, as increasing levels of violence are associated with chemical dependency, the number of generally dangerous clients also seems likely to rise. Those chemical dependency counselors working in certain settings, such as criminal justice, might wrongly per- ceive this exception much too broadly. Again, such an inaccurate statement, al- though certainly well-intended and not far off the mark, deserves clarification.

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CONCLUSION

Manhal-Baugus (1996) has done a great service to chemical dependency counse- lors by opening a much needed discussion of confidentiality. As with any discus- sion, however, making the initial statements risks opening oneself to criticism from others. The criticisms presented here are reflective of that opportunity and are offered to help chemical dependency counselors more fully understand the requirements of confidentiality-from both legal and ethical perspectives-and exceptions to it. As with all ethical issues relating to counseling, consultation with colleagues and supervisors is always warranted when considering a prob- lematic ethical or legal issue; confidentiality is no exception, and the ramifica- tions of its inappropriate interpretation are so great that extreme care should be used in decision making. Further discussion and debate on this topic can only strengthen both chemical dependency counselors’ knowledge and the field.

REFERENCES

American Counseling Association. (1995). Code of ethics and standards of practice (4th ed.).

Anderson, B. S . (1996). The counselor and the law (4th ed.). Alexandria, VA: American Coun-

Code of Federal Regulations, 42.6-25. (1994). Washington, DC: U.S. Government Printing Office. Legal Action Center. (1995). Confidentiality: A guide to the federal law and regulations (3rd ed.).

New York: Author. Manhal-Baugus, M. (1996). Confidentiality: The legal and ethical issues for chemical dependency

counselors. Journal of Addictions & Offender Counseling, I ? , 3-1 1. National Association of Alcoholism and Drug Abuse Counselors. ( 1 995a). Ethical standards of

alcoholism and drug abuse counselors. Arlington, VA: Author. National Association of Alcoholism and Drug Abuse Counselors. (l995b, February). State licen-

sure of alcoholism and drug abuse counselors (Position statement). Arlington, VA: Author. Tarasoff v. Regents of the University of California, 17 Cal. (3rd) 425, 131 Cal. Rep. 14 (1976).

Alexandria, VA: Author.

seling Association.

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