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Drug Court ConferenceMurfreesboro, TN12/7/2012Use only by permission of Frances Patterson, PhD1

Drug Court and Ethics

Presented by:

Frances Patterson, Ph.D., MAC, BCPC, QSAP, CCJAS, QCS

Footprints Consulting Services, LLC

Frances Patterson, PhD, MAC

Objectives

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Discuss Confidentiality in the Drug Court Setting

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Examine the difference between Case Management, Intensive CM, Monitoring and Micromanagement

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Explore the difficulties in Wearing Two Hats: monitoring vs. counseling

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Discuss how self care is a part of professionalism

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Define a team approach to present a united front and avoid Staff splitting


Confidentiality in the Drug Court Setting

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The Federal laws and regulations define a “treatment program”:

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an individual or entity that provides diagnosis of chemical dependency and referral to treatment in addition to providing actual rehabilitative services.

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An employee of a drug court performs an assessment of chemical dependency of a drug court participant, and/or a referral to treatment, that drug court is considered a “treatment program” for purposes of the application of the Federal confidentiality regulations (42 CFR §2.11)


Disclosure of treatment info

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Legal liability for unauthorized disclosure extends to:

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employees of programs that assess and/or diagnose substance abuse,

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case managers who refer clients to treatment

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any administrators or other staff who are paid exclusively to work with the drug court program,

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treatment programs or providers that perform the actual treatment and rehabilitative services.


Responsibility to protect

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Shared ethical responsibility for protecting the confidentiality rights of mandated clients:

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Judges

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prosecuting and defense attorneys

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probation department staff

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child welfare staff

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other individuals involved in the drug court program in a non-treatment provider capacity

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Must honor the intent of Congress in providing the confidentiality protections

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Need education regarding legal limitations on disclosure and subsequent use of treatment info, proper processes for obtaining consent from participants to permit the exchange of information necessary for the drug court program to function.


Implications for Professionals

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Such as therapists, teachers, social workers, substance abuse counselors, and mediators,

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Involved in problem-solving courts, (drug, MH courts) and other processes in which several professionals, all representing different interests, meet as a “team.”

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Profession have independent rules about confidentiality and the relationship with the client

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Have clients and other participants sign waivers.

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Poorly crafted waivers may be problematic

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Clients may not be fully informed to make a “knowing, voluntary, and intelligent” waiver or consent



Insuring Compliance

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Drug court team members can still, within current confidentiality legal provisions, obtain the level of information to evaluate compliance with drug court program criteria.

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There may be instances in which compliance with these provisions will require limiting the extent of information disclosed as well as the forum in which it is presented.

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Examples of when this might happen?


Example

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Pat is a SA counselor in a drug court treatment program. During drug court, where all participants are in attendance, the judge requests an update on one of her clients. Pat shares with the judge that the client has been having difficulty staying clean because of being raped as a teenager by her uncle. Pat continues with details of other childhood abuse which led to early drug and alcohol use. Pat is appealing to the judge to give her client leniency due to these circumstances.


How much to share in the courtroom

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Is it OK to “tell all” in open drug court?

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What should be shared with judge?

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Is there information that should not be shared?

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Confidentiality vs. secrets


Revocation of Consent

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Individuals mandated to treatment by court as a condition of the disposition of a criminal proceeding, such as through probation, parole, sentencing, an agreement for dismissal of charges, or an order for release from imprisonment, may not revoke their consent (42 CFR §2.35).


Revocation (cont)

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The event that triggers termination of consent for individuals referred to substance abuse treatment by a criminal drug court should be:

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the final disposition of the case—

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discontinuation of all court and/or probation supervision for an individual who has successfully completed the drug court program,

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sentencing a defendant for a violation of the court-imposed conditions

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No future disclosures can be made after an event occurs that triggers the revocation or termination of consent.


Informed Consent of Clients

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Participants must be informed about their right to confidentiality at the time of their initial screening or assessment

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Asked to sign consent that will permit disclosure to and exchanges of information between the judge, prosecutor, defense counsel, the probation department, or other relevant party, and the treatment provider that will be providing direct services.



Drug court policy should specify:

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failure to sign the consent form is grounds for exclusion from drug court participation,

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drug court operations require that all members of the “team” be able to follow each participant’s treatment compliance and progress.

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In exchange for this consent participants assured that information cannot be used to expose them to other criminal jeopardies except to the extent that they may be subject to sanctioning as a result of noncompliance with drug court policies.


Need to Know

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Does a judge have the right to know everything about the client’s substance abuse treatment?

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What does he/she have a right to know?


Scope of Disclosures

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Limited to information necessary to carry out the purpose of the disclosures

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Drug court consent forms should narrow the scope of disclosure to:

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“report[s] of the participant’s eligibility and/or acceptability for substance abuse treatment services,” and

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“report[s] of…treatment attendance, compliance and progress in accordance with drug Court monitoring criteria which are necessary for and pertinent to hearings or reports concerning the participant’s [charges/ indictment/termination of parental rights, etc.].”

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Consent forms should never permit a treatment provider to turn over the entire client file to anyone.

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Does this include the judge?


Difficulties for the Judges

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Change in judge’s traditional role to motivator, mentor, cheerleader

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Ethical concerns for judges:

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Extrajudicial activities, (fund raising, community events, and drug court functions)

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Outside communication with participants

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Confidentiality, e.g. defendant has involvement in another court at some point

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Drug testing and obtaining other evidence through court order

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Need to be impartial: Balancing act between praise or sanction and being impartial

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Program promotion

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Coercion: ordering medication compliance, where to live, who they can and can’t associate with, mandated meetings, etc.

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Use of judicial power versus a team approach.


Some solutions

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Memorandum of Understanding (MOU) from the start

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Clarify rules from the beginning

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Anticipate problems and have P&P to resolve before they arise

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Rely on and be familiar with resources for judges

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Promote program in a positive

“Specialized and Problem-Solving Courts: Trends in 2002: The Ethics of Problem Solving” Anne EndressSkove


Drug Testing

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Courts that meets the statutory definition of “program”—that is, an entity that provides diagnosis of chemical dependency and referral to treatment—requires drug testing, the results are subject to confidentiality laws.
