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James L. Knoll IV, MD, analyzes the ethical and legal duties of psychiatrists treating substance use disorders.
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.
Finally, a third option involves investigating, with legal counsel, the possibility of returning to court to amend the patient’s probation conditions to allow for such communications. This last option would be less preferable, of course, to the patient agreeing with his treatment team to give consent. In other words, a solid and agreed upon plan from outset is superior to one that must confront repeated barriers to coordinated treatment. Nevertheless, there may be no simple or clear-cut answers, as obtaining consent in advance does not preclude a patient from later deciding to rescind consent. What are some possible adverse outcomes if a psychiatrist decides (in good faith) that a duty to the patient necessitates contact with a key health care provider, despite the patient refusing to give consent? A medical malpractice suit brought forth by the patient for breach of confidentiality is one possibility. In such a case, the patient would need to show that the breach of confidentiality directly caused some untoward event (eg, loss of employment, loss of custody, psychological damages.). Another possibility is that an aggrieved patient may lodge a formal complaint with the local medical board, prompting a review and possible sanctions.
This case highlights the growing importance of addiction psychiatry, as well as appropriate legal arrangements from the outset of treatment to ensure proper coordination of care. Addiction psychiatrists know well that substance use and criminal recidivism are irrevocably linked,6 and that relapse prevention is necessary to prevent a return to jail or prison.7 For justice-involved individuals with substance use disorders, continued illicit drug use likely inhibits the ability to “mature out” of a criminal lifestyle in young adults.8 The stakes are extremely high for this population of patients. Release from prison is associated with significant mortality rates and a leading cause is drug overdose.9 The first two weeks after release appears to be a particularly vulnerable time of high risk for opioid overdose.
Dr Constantino is appropriately concerned about the challenge involved when a prolonged period without opioid use can simultaneously be a sign of recovery, as well as a risk factor for fatal overdose.10 I would add that the patient’s focus on getting through his “five months” of probation and refusal of long acting naltrexone would reasonably make a treatment provider nervous. There is now some data supporting extended-release naltrexone being associated with a decreased risk of overdose. Thus, naltrexone is currently an option for patients who decline or are unable to obtain opioid agonist treatment.11 This can become critical in that opioid use disorder treatment remains quite limited in US correctional facilities.12 Looking towards the future, it is hoped that concerted efforts are made to implement programs across the criminal justice continuum to address this deadly public health issue.13
Dr Constantino and his team seek consultation from their risk management department-always a sound decision that follows the dictum of the great Tom Gutheil, MD: “Never worry alone.” Finally, I would add that Dr Constantino’s team appeared to exert due diligence with “repeated” follow up calls and a letter. This is particularly important in that proper termination with patients involves such efforts, along with documentation they occurred and that some other potential providers in the community were offered to the patient. In this case, a follow-up communication letter letting the patient know you are willing to arrange communication of important health care information with his new provider would be ideal.
I conclude again with a thanks to Dr Constantino, as well as a supportive proclamation that competent and evidence-based substance use disorder treatment “is a more appropriate intervention than incarceration for non-violent drug offenders,” and “non-violent drug offenders should be diverted to treatment programs while being monitored through intensive probation drug courts, or other means, instead of expensive and less effective incarceration.”14 Further, treatment and monitoring following incarceration should be available, and likely court mandated, for those on probation to prevent relapse, deadly overdose and recidivism.
Acknowledgments: Dr Knoll would like to thank Professor Andrew J. Saxon, MD, Director, Center of Excellence in Substance Abuse Treatment and Education, University of Washington School of Medicine, for his helpful review and comments.
Dr Knoll is Director of Forensic Psychiatry and Professor of Psychiatry at SUNY Upstate Medical University in Syracuse, NY. He is Editor in Chief Emeritus of Psychiatric Times (2010 to 2014).
This article was originally published on July 1, 2019, and has since been updated. The print version of this article is titled Response to a Rock and a Hard Place.
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-final.pdf. 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.