Despite advances in addiction research, substance use disorders continue to tighten their grip on society. Forensic psychiatrist and Editor in Chief Emeritus of Psychiatric Times, James L. Knoll IV, MD, weighs in on a case report.
A Response to A Rock and A Hard Place, by Eduardo Constantino, MD
Dr Constantino has our gratitude and sincere respect for submitting his case which is both real world and timely. Upon consulting with many respected addiction psychiatrists to formulate my response, all of them added that they were grateful that these difficult issues were being raised for discussion. I must imagine that such cases will be seen with greater frequency, particularly as the specialty of addiction psychiatry advances and substance use disorders tighten their grip on society.
In my view, Dr Constantino’s case is not so much a case about malpractice, but an extremely rich case highlighting the ethical and legal duties of a practicing addiction psychiatrist. There do not appear to be any clear deviations from the standard of care, nor are we made aware of any damages—effectively removing two of the four “Ds” that a plaintiff must prove in a malpractice case.1 Nevertheless, the learning value from this case is substantial. Dr Constantino’s “awkward quandary” involved the frustrating dilemma between preserving a patient’s right to confidentiality—and an ethical/clinical duty to act beneficently and preserve life. Yet as with many clinical dilemmas, the resolution often lies along the path of engagement and dialogue with the patient.
All physicians are presumed to have some awareness of confidentiality, given that it is required by professional ethics, hospital policy, and federal and state law. The exceptions to confidentiality are relatively small in number and include: medical emergencies, statutory reporting requirements (suspected child or elder abuse) and an individual state’s legal requirements regarding patients’ credible threats to third parties (Tarasoff statutes). From a legal standpoint, actions for breaching confidentiality may include: breach of contract, breach of statutory duty and professional misconduct. Confidentiality and privacy of psychiatric records is especially important in the field of addiction psychiatry. In fact, this issue is stressed by federal law, which requires that documentation in addiction treatment be held to even higher standards of confidentiality than general psychiatric and medical encounters.2
According to the American Academy of Addiction Psychiatry (AAAP), a “basic principle of confidentiality of personal health information is that, to the greatest extent possible, control of personal medical information should be in the hands of the patient. Nonetheless, when patients receive . . . substance use disorder services, their agreement to begin treatment should include their written consent that certain identifiable health information will be shared with other health professionals.”3
A major concern of patients and addiction psychiatrists is that failure to maintain strict confidentiality in the setting of substance use treatment can potentially result in a cascade of highly adverse consequences.4 For example, it is not uncommon for disclosure of substance use treatment to result in: loss of employment, loss of child custody, discrimination by insurers and other health care professionals. Of course, the possibilities of arrest and incarceration are ever-present. Unsurprisingly, such concerns may lead individuals in need of treatment to avoid seeking the help they need—often until it is too late. Keeping this in mind, let us turn to Dr Constantino’s first question: “Even though his probation officer was allowed to speak to any and all medical staff, could we legally call the probation officer against the patient’s specific instructions?”
Based on the case description, the treatment team’s decision to not call the probation officer seems appropriate, as doing otherwise would be a violation of consent and breach of confidentiality. It is recommended that psychiatrists obtain specific signed consents “for release of any personal health information to entities outside of the health-care delivery system, such as . . . judges, prosecutors, police or other legal investigators, or institutional or community corrections officials, even in response to subpoenas, as stipulated in 42 CFR Part 2.”4 Absent patient consent, requests for information from law enforcement or other government agencies seeking information without patient consent should be denied. One exception to this may be a specific court order (per 42 CFR Part 2). However, such court orders are typically reserved for patients who have been involved in serious crimes.
Addiction specialists know that parole and probation officers play a critical role in the lives of their patients. A positive relationship with a parole officer can mean the difference between recidivism—and continued wellness in the community.5 Because of their central role, it is important to have a clear understanding, from the beginning of treatment, about the precise conditions of probation that were ordered by the court. A meeting with the probation officer may be helpful to establish rapport, ground rules, limits of confidentiality and to review any legal documentation from the court. A reliable understanding of the probation officers’ “marching orders” will put the treatment team in a better position to understand any concerns the probation officer may have, as well as what information may be communicated between parties.
Turning to Dr Constantino’s second and third questions regarding notifying the patient’s IOP, and concerns about providing appropriate care—it is noted that the patient refused to give consent to speak to his IOP substance use treatment center. From a clinical standpoint, effective coordination of care is assumed to be in the best interests of the patient. Yet in this case, it can be argued that the same legal restrictions apply to informing the patient’s IOP. This is highly unfortunate, but there appear to be at least two barriers. First, the patient refused to give consent. Second, there is no mention that consent was legally applied by the court to the patient’s original terms of probation, which would allow for communication of health information with the IOP and vice versa.
There are several important points to consider regarding this impasse. The AAAP notes that when patients opt to not allow health information to be shared among other providers, they “should be educated about the implications for the quality of the health care services they may receive, and thus the potential detriments to their own health care outcomes and health status, when they decline to sign the consent.”4 Therefore, an open and serious discussion with the patient regarding the potentially life-threatening consequences of refusing to allow communication between mental health and substance use treatment providers should be undertaken and documented. However, the patient is noted to have poor insight into his dilemma and so we proceed to other options for now, while recognizing that improving insight will remain a continuing goal.
Arguably, the ideal resolution occurs prior to any treatment plan implementation, and involves a clear agreement between patient and treatment team from the outset regarding coordination and communication of care with the IOP. The patient’s signed informed consent for communication with other health care providers is one of the goals of this discussion. Some addiction specialists would advise going no further with a treatment agreement if the patient refuses to allow communication between key health care providers. In contrast, other addiction psychiatrists may view their ethical and clinical duty to the patient as transcending this impasse and would not refuse treatment to a patient who refused to give consent to communicate with other health care providers.
1. Knoll JL. Duty of Care and Informed Consent. Psychiatric Times. 2019;36(3):4-5.
2. Chapter 42 of the Code of Federal Regulations, Part 2, (42 CFR Part 2)
3. Confidentiality of Patient Records and Protections Against Discrimination: A Joint Statement by American Society of Addiction Medicine, American Academy of Addiction Psychiatry, American Osteopathic Academy of Addiction Medicine and the Association for Medical Education and Research in Substance Abuse https://www.aaap.org/wp-content/uploads/2018/07/confidentiality-2018-fin.... Accessed June 28, 2019.
4. Dept. of Health and Human Services. Confidentiality of Substance Use Disorder Patient Records. 42 CFR Part 2; 2017: 82(11). https://www.govinfo.gov/content/pkg/FR-2017-01-18/pdf/2017-00719.pdf. Accessed June 28, 2019.
5. Chamberlain A, et al.: Parolee-Parole Officer Rapport: Does It Impact Recidivism? Int J Off Ther Comp Crim. 2018;62:3581-3602.
6. Fearn NE, Vaughn MG, Nelson EJ, et al. Trends and correlates of substance use disorders among probationers and parolees in the United States 2002–2014. Drug Alcohol Depend. 2016;167:128-139.
7. Kopak A, Haugh S, Hoffman N. The entanglement between relapse and posttreatment criminal justice involvement. Am J Drug Alcohol Abuse. 2016;42:606-613.
8. Walters G. Does Drug Use Inhibit Crime Deceleration or Does Crime Inhibit Drug Use Deceleration? A Test of the Reciprocal Risk Postulate of the Worst of Both Worlds Hypothesis. Subst Use Misuse. 2018;53:1681-1687.
9. Binswanger IA, Stern MF, Deyo RA, et al. Release from prison--a high risk of death for former inmates. N Engl J Med. 2007;356:157-165.
10. Babu K, Brent J, Juurlink D. Prevention of Opioid Overdose. N Engl J Med. 2019;380:2246-2255.
11. Friedmann PD, Wilson D, Hoskinson R Jr, et al. Initiation of extended release naltrexone (XR-NTX) for opioid use disorder prior to release from prison. J Subst Abuse Treat. 2018;85:45-48.
12. Csete J. Criminal Justice Barriers to Treatment of Opioid Use Disorders in the United States: The Need for Public Health Advocacy. Am J Public Health. 2019;109:419-422.
13. Brinkley-Rubinstein L, Zaller N, Martino S, et al.: Criminal justice continuum for opioid users at risk of overdose. Addict Behav. 2018;86:104-110.
14. Criminal Justice System and Substance Use Disorder Treatment Policy. https://www.aaap.org/wp-content/uploads/2018/07/AAAP-FINAL-Criminal-Justice-System-and-SUD-Treatment-Policy-HC_rr.pdf. Accessed June 28, 2019.