Addiction professionals have a complex relationship with professionals in the criminal justice system. Sometimes it is hard to tell whether we view each other as partners, adversaries, or “persons of interest.”
Nicholas A. Roes, PhD
We get referrals from the criminal justice system, but we also are bound by federal and state confidentiality statutes. This has implications for our relationships with our clients and with justice professionals.
If a police officer comes to your program's door with an arrest warrant, you may be in violation of federal confidentiality laws if you produce or identify that client. If you allow police with a search warrant to gain access to client records, you may also be in violation of these laws. It's important to know what to do if you are presented with a subpoena, search warrant, or court order. Today's counselors need to understand “duty to warn” requirements in which confidentiality may be breached in cases of imminent danger to a client or others, as well as their responsibilities around mandated reporting of child abuse.
Guidance for counselors is provided by many codes of ethics, laws, and regulations. Sometimes state and federal laws conflict, and even among federal laws some inconsistencies exist.
My next two columns will explain important provisions of federal confidentiality laws, will address how to handle interactions with the criminal justice system, and will offer suggestions on how to mitigate any damage to the therapeutic relationship. I offer these suggestions as a counselor and a journalist. I am not an attorney, and advise that an attorney be consulted before any of these suggestions are applied:
When you get a subpoena. You should neither ignore nor respond to a subpoena without legal guidance. Unless your client has authorized you to do so, don't answer any questions or inquiries made by child protective services, prosecutors, or investigators until you have sought legal counsel.
If possible, contact your client as soon as possible after getting a subpoena. It may be that the subpoena is from the client's lawyer and the client is willing to authorize partial or full disclosure. If this is not the case, the client might have an attorney who will move to quash the subpoena. The program, the program's attorney, or the client could also object to the subpoena on a number of grounds, but it is best to follow the guidance of legal counsel.
When you are presented with an arrest warrant or search warrant. If someone comes to your property with a badge and a gun, be nice. I would recommend cooperating with law enforcement officials to the extent allowed under the law. The regulations don't obligate you to physically block law enforcement personnel from searching your premises or taking files.
The best course of action when presented with an arrest warrant or search warrant is to seek the client's voluntary cooperation. Even if you succeed in protecting your client from arrest, the client's problems will not go away, and substance abuse treatment is not designed to be a sanctuary from the law. My next column will address ways to repair any damage done to the therapeutic relationship.
Like subpoenas, arrest warrants and search warrants are not enough in themselves to permit disclosure of protected information. So programs should not comply with them without an appropriate court order. When there is no valid court order, you should provide the person issuing the warrant with a copy of the regulations and explain why you can't cooperate. Try to arrange for time to consult with your attorney, and ask if you may contact the prosecuting attorney so that the program can contact a higher-ranking person who may be more familiar with the regulations.
If your client does not authorize you to release confidential information, an arrest warrant does not authorize you to do so either. An arrest warrant only authorizes taking a person into custody. It does not allow unlimited access to private property. If someone comes to the property with an arrest warrant, you may choose to allow the person on the property or ask the person to leave.
When a crime is committed on program premises. You may release some confidential information to police when a client commits a crime on program premises or commits a crime against program personnel. In the absence of a valid consent, the information you provide is limited to the client's name, address, and last known whereabouts. The law does not allow you to report any other crimes the client might have committed.
Unless the crime was committed on program grounds or against program personnel, you cannot disclose the names of clients who are victims of or witnesses to crimes without a valid consent or court order. The crime may be reported if you can do so without identifying the client as a client or potential client of a substance abuse treatment program.
Even when confidentiality laws allow disclosure, disclosure is not required except in the context of a properly executed court order. If more stringent state confidentiality laws apply, federal law allows you to comply with them.
My next column will take a look at court orders, mandated reporting of child abuse or neglect, “duty to warn,” and ways to repair damage that disclosures can do to the therapeutic relationship.
Nicholas A. Roes, PhD, has written hundreds of articles and several books, including
Solutions for the ‘Treatment-Resistant’ Addicted Client (Haworth Press, 2002; reviewed in the January 2003 issue of