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Center for Substance Abuse Treatment. A Guide to Substance Abuse Services for Primary Care Clinicians. Rockville (MD): Substance Abuse and Mental Health Services Administration (US); 1997. (Treatment Improvement Protocol (TIP) Series, No. 24.)
by Margaret K. Brooks, Esq. 1
Because substance use disorders carry such a stigma, primary care clinicians who screen their patients for substance abuse unavoidably intrude on their autonomy and their privacy. Whether clinicians screen through laboratory testing or by administering behavioral questionnaires, they are seeking very personal information. When clinicians use this information to suggest or urge that patients get treatment, or share this information with others, patients may feel their autonomy threatened and their privacy invaded.
Clinicians generally perform substance abuse screening and assessment either to improve management of presenting conditions or to encourage patients to accept treatment. However, patients, accustomed to clinicians' respect for their autonomy, may not see it that way. A patient "in denial" may not realize, or want to realize, that he has to cut back on or give up his alcohol or other drug use, and he may view the clinician's questions and suggestions as intrusive.
A patient may also be concerned about the social stigma that comes with admission of a substance use problem. It is common for people with such problems to face stigmatization and discrimination if those problems become public knowledge. Such patients may find it difficult or impossible to obtain coverage for hospitalization costs if an insurer or health maintenance organization (HMO) learns that their traumatic injuries were related to alcoholism. Or, patients' employers could take a dim view of their entering drug treatment. Relationships with a spouse, parent, or friends may suffer. Adverse consequences such as these may discourage patients with substance use problems from seeking treatment.
This appendix will examine how the issues of privacy and confidentiality affect the way primary care clinicians may screen patients for substance use problems. The first issue discussed is the relationship between patient autonomy, a value medicine holds dear, and the clinician's obligation to inform and counsel his patient about the health risks of alcohol or other drug use. A discussion of privacy of information about a patient's substance use problems follows: How can the clinician keep accurate records and communicate with others concerned about the patient's welfare without disclosing information that may subject the patient to scorn, loss of employment, or problems with insurance? This section offers specific examples of situations primary care clinicians may encounter in connection with patients who have substance use disorders.
A clinician confronted with evidence of a patient's substance abuse is caught between respect for his patient's autonomy and his duty to ensure his patient's health. Should the clinician raise the issue and then drop it at the slightest hint of resistance on the part of the patient? Or should he intervene more forcefully -- with argument, or by involving the family?
To fulfill his ethical responsibility to his patient's health, the clinician should do more than simply raise the issue. He should give the patient all the relevant information, engage the patient in a discussion, and follow up in future visits.
Testing patients' urine for drugs is not an everyday practice in primary care, but a clinician may want to use such a screen, especially when treating adolescents for substance abuse problems. Must, or should, a clinician get the patient's consent before ordering a drug screen? Such a decision must be guided by the strictures of trust and privacy, because the law addresses only the case of doctors reporting pregnant substance-abusing women to child protective services or the criminal justice system. Ordinarily, a clinician does not ask a patient to consent before she sends his urine or blood for other testing.
However, ordering laboratory tests to screen patients for substance abuse problems is different than screening for, say, diabetes. Patients expect to be screened for blood sugar and cholesterol but not for alcohol and other drugs. A patient confronted with the results of a test he did not know about and did not consent to may feel betrayed by the clinician and that the clinician has shown a lack of respect for his right to make his own decisions about medical tests and care. Feeling he can no longer trust the clinician and angry that he has been "tricked," the patient may refuse to participate in any further discussion about his substance use problem. In the interest of a more productive clinician-patient relationship, the better practice is to ask the patient before running any laboratory screens.
A second reason clinicians should get a patient's consent before testing urine or blood for alcohol or other drugs is the patient's privacy. If the clinician orders a test, the patient's health insurance carrier will know about it and perhaps the result as well. The clinician's decision to order a drug screen tells the third party payer a good deal, even if the result is negative. The patient should decide whether he is willing to have his insurance carrier learn this information.
A third reason is financial. The patient's third party payer may not cover drug screens as a matter of course. The advent of managed care has narrowed the range of tests a clinician can order on a routine basis. If the patient's insurance or HMO will not cover the test, the patient should have the opportunity to decide whether he is willing to pay for the test out of his own pocket, a decision he should make before the test is taken.
Unfortunately, there is a good chance that if the clinician consults the patient and asks for his consent, he will refuse to agree to the test. However, this exchange leaves the door open to further discussion with the patient about his possible substance use problems (see Chapter 3). The patient may be more open to examining his own behavior after refusing a test than if he thought the clinician acted behind his back. The clinician could begin the discussion by asking, in a neutral way, why the patient does not want to have a drug screen.
Concern about privacy and confidentiality is fueled by the widespread perception that people with substance use disorders are weak or morally impaired. A patient whose substance use problem becomes known to her employer may lose an expected promotion -- or her job. If she has marital problems, information about her substance use could have an impact on divorce or custody proceedings. Or her health insurance could be canceled.
The concern about the adverse effects that social stigma and discrimination have on patients in recovery (and how those adverse effects might deter people from entering treatment) led the Congress to pass legislation and the Department of Health and Human Services (DHHS) to issue a set of regulations to protect information about patients' substance abuse. The law is codified at 42 U.S.C. §290dd-2. The implementing Federal regulations, "Confidentiality of Alcohol and Drug Abuse Patient Records," are contained in 42 CFR Part 2 (Vol. 42 of the Code of Federal Regulations, Part 2).
The Federal law and regulations severely restrict communications about identifiable patients by "programs" providing substance use diagnosis, treatment, or referral for treatment (42 CFR §2.11). The purpose of the law and regulations is to decrease the risk that information about individuals in recovery will be disseminated and that they will be subjected to discrimination, which should also encourage people to seek treatment for substance use disorders.
In most primary care settings, Federal confidentiality laws and regulations do not apply. For many years, there was confusion about whether general medical care settings such as primary care clinics or hospital emergency rooms were subject to the Federal law and regulations because they provided substance abuse diagnosis, referral, and treatment as part of their services. In 1995, DHHS revised the definition of the kinds of "programs" subject to the regulations, making it clear that the regulations do not usually apply to a general medical care facility unless that facility (or person) "holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment" (42 CFR §2.11). 2
Most primary care clinicians are not subject to the Federal rules. Practitioners should be aware, however, that if a health care practice includes someone whose primary function is to provide substance abuse assessment or treatment and if the practice benefits from "Federal assistance," 3 that practice must comply with the Federal law and regulations and implement special rules for handling information about patients who may have substance abuse problems. 4
Moreover, the fact that most primary care clinicians are not subject to the Federal rules does not mean that they can handle information about patients' substance use problems in a cavalier manner. Because of the potential for damage to patients, clinicians should always handle such information with great care.
Although Federal rules do not restrict how most primary care clinicians gather and handle information about patients' substance abuse, there are other rules that may limit how such information may be handled. State laws offer some protection to medical information about patients. Most clinicians -- and patients -- think of these laws as the "doctor-patient privilege."
Strictly speaking, the doctor-patient privilege is a rule of evidence that governs whether a physician can be asked or compelled to testify in a court case about a patient. In many States, however, laws offer wider protection. Some States have special confidentiality laws that explicitly prohibit practitioners from divulging information about patients without consent. States often include such prohibitions in professional licensing laws; such laws generally prohibit licensed professionals from divulging information about patients, and they make unauthorized disclosures grounds for disciplinary action, including license revocation.
Each State has its own set of rules, which means that the scope of protection offered by State law varies widely. Whether a communication (or laboratory test result) is "privileged" or "protected" may depend upon a number of factors:
The type of professional holding the information and whether he or she is licensed or certified by the State
The context in which the information was communicated The context in which the information will be or was disclosed Exceptions to any general rule protecting informationWhich practitioners are covered depends on the State within which the clinician practices. California, which grants its citizens "an inalienable right to privacy" in its Constitution, has what may be the most extensive protections for medical (including mental health) information. California law protects communications with a wide variety of professionals, including licensed physicians, nurses, and psychotherapists (which includes clinical social workers, psychologists, and marriage and family counselors), as well as many communications with trainees practicing under the supervision of a number of these professionals. A California court has held that information given to an unlicensed professional by an uneducated patient may be privileged if the patient reasonably believes the professional is authorized to practice medicine. 5
Other States' laws cover fewer kinds of professionals. In Missouri, for example, protection is limited to communications with State-licensed psychologists, clinical social workers, professional counselors, and physicians. Even within a single State, the kind of protection afforded medical information may vary from profession to profession. Clinicians should learn whether any confidentiality law in the State in which they practice applies to their profession.
State laws vary tremendously in this area, too. Some States limit protection to cover only information a patient communicates to a professional in private in the course of the medical consultation. Information disclosed to a clinician in the presence of a third party -- like a spouse -- is not protected. Other States, such as California, protect all information the patient tells the clinician or the clinician gains during examination. 6 California also protects other information acquired by the clinician in his professional capacity about the patient's mental or physical condition, as well as the advice the clinician gives the patient. 7 When California courts are called upon to decide whether a particular communication of medical information is privileged, State law requires them to presume that it is.
California affords even greater protection to communications between patients and psychotherapists, a term that covers a wide range of professions. Communications by and to the patient as well as information communicated by a patient's intimate family members to therapists and psychiatric personnel 8 are protected. California also protects information the patient discloses in the presence of a third party or in a group setting.
Understanding what medical information is protected requires primary care clinicians to know whether State law recognizes the confidentiality of medical information in the many contexts in which the clinician acquires it.
Some States protect medical information only when that information is sought in a court proceeding. If a physician divulges information about a patient in any other setting, the law in those States will not recognize that there has been a violation of the patient's right to privacy. Other States protect medical information in many different contexts and may discipline professionals who violate their patients' privacy, allow patients to sue them for damages, or criminalize behavior that violates patients' privacy. The diversity of State rules in this area compounds the difficulty clinicians face in becoming knowledgeable about what rules apply to them.
All States permit health care professionals to disclose information if the patient consents. However, each State has different requirements regarding patient consent. In some States, consent can be oral; in others, it must be written. States that require written consent sometimes require that certain elements be included in the consent form or that everyone use a State-mandated form. Some States have different consent forms with different requirements for particular diseases.
All States also require the reporting of certain infectious diseases to public health authorities and of child abuse to child protective service agencies, although definitions of infectious disease and child abuse vary. And most States require health care professionals and mental health counselors to report to the authorities threats patients make to inflict harm on others. There are States that permit or require health care professionals to share information about patients with other health care professionals without the patients' consent, but some limit the range of disclosure for certain diseases, like HIV. Most States make some provision for communicating information to health insurance or managed care companies.
Many of the situations that primary care clinicians face daily -- processing health claims, for example -- are covered by one of these exceptions. To fully understand the "rules" regarding privacy of medical information, primary care clinicians must know about the exceptions to those rules as well. Those exceptions are generally in the statute books -- in either the sections on evidence or the professional licensing sections, or both. The State licensing authority as well as professional associations can usually help answer such questions.
One way for a primary care clinician to safeguard his patients' privacy and avoid breaking the rules is to develop a charting, or recordkeeping, system that is accurate but still protects patients' rights to privacy and confidentiality. It's important to remember how many people could see a patient's medical chart: the medical office staff, the insurance company (or HMO or managed care organization [MCO]), and in the event of a referral, another set of clinicians, nurses, clerical workers, and insurers. If the patient is involved in litigation, and his medical or mental health is an issue, the court will most likely require the clinician to disclose the chart in response to a subpoena.
The Consensus Panel recommends that when documenting screening or assessment results or flagging an issue to be raised during the patient's next visit, clinicians use neutral chart notations or reminders that do not identify the problem as being substance-use-related. Following are three recordkeeping systems that comply with the stringent Federal confidentiality regulations, protect patients' autonomy and privacy, and can be used in the primary care setting (TIP 16, Alcohol and Other Drug Screening of Hospitalized Trauma Patients, CSAT, 1995: 9
The "minimalist" approach, which relies on the clinician to enter only that information in the chart that is required for accuracy and to use neutral terms wherever possible.
The "rubber band" approach, which segregates substance abuse information in a separate "confidential" section in the chart. Information in this section would be shared with other clinicians only on a need-to-know basis, without being open to the view of every staff person who picked up the chart.
The "separate location" approach, which keeps sensitive information separate from the rest of the patient's chart. The other place might be a locked cabinet or other similarly secure area. A "gatekeeper" familiar with the clinician's recordkeeping system and the reasons for the extra security would be responsible for deciding when others -- within or outside of the office -- will have access to this information. This approach provides, in effect, a stronger "rubber band" than that described in the second approach. 10
The push toward computerization of medical records will complicate the problem of keeping sensitive information in medical records private. Currently, there is protection afforded by the cumbersome and inefficient way many, if not most, medical records make their way from a clinician in one practice to a clinician in another. When medical records are stored in computers, retrieval can be far more efficient. Computerized records may allow anyone with a disk and access to the computer in which the information is stored to instantly copy and carry away vast amounts of information without anyone's knowledge. Modems that allow communication about patients among different components of a managed care network extend the possibility of unauthorized access to anyone with a modem, the password(s), and the necessary software. The ease with which computerized information can be accessed can lead to "casual gossip" about a patient, particularly one of importance in a community, making privacy difficult to preserve.
One of the trickiest issues is whether and how clinicians should communicate with others about patients' substance use problems. The Consensus Panel suggests the clinician gather information from other sources or enlist help for a patient struggling with recovery in several circumstances. Speaking with relatives (including parents), doctors and other health and mental health professionals, employers, or schools might seem at first glance to pose no risk to a patient's right to privacy, particularly if the person or organization approached for information referred the patient to the clinician or the clinician is seeking to enlist help for the patient. However, gathering information; responding to questions about a patient's problems from a spouse, school, or employer; or making a referral to a substance abuse treatment program can involve an explicit or implicit disclosure to an outsider that the clinician believes the patient has a substance abuse problem. And the clinician making such a disclosure may be inadvertently stepping on a land mine.
A clinician screening or assessing a patient for substance abuse problems may well want to ask a relative (including a parent), a previous doctor, or a mental health provider what they have observed about the patient's use of alcohol or drugs. Such information may confirm the clinician's judgment that the patient needs help or may be useful in persuading a reluctant patient that treatment is necessary. However, before going elsewhere for information, it is best to get the patient's consent for reasons of trust, privacy, and autonomy already discussed. And, if harm does result from the clinician's conversation with a third party, there will be a record that the patient consented to the communication.
The clinician has persuaded the patient to try outpatient treatment and knows the director of an excellent program in the immediate area. Rather than simply picking up the phone and letting the director know she has referred the patient, she should consult the patient about the specific treatment facility. Though it may seem that consent to general treatment is the same as consent to a facility, it takes very little time to get the patient's consent, demonstrates respect for the patient, and protects the clinician if, say, the treatment program's director is the patient's boss's cousin or some such connection.
Suppose a clinician believes that a patient's problem requires intensive treatment, available only in another county or a residential facility. The patient's employer must be notified that she will be gone for a period of time to get treatment. The patient expresses concern about being fired if her employer learns she has a substance use problem. How should the clinician proceed?
Clinicians should listen when patients express concern that an employer will not be sympathetic about either the substance use problem or the decision to enter treatment. The patient may well have an accurate picture of her employer's attitude. If the clinician's communication to the employer directly or indirectly discloses the patient's substance use problem and the patient loses her job, the clinician may find himself facing an unpleasant lawsuit.
There are two ways of handling the problem -- that are best when used together: (1) Communicate a neutral diagnosis to the employer that does not directly or indirectly disclose the patient is entering alcohol or other drug treatment and (2) get the patient's consent before sending the communication.
Traditional health insurance programs offering reimbursement to patients for clinicians' fees typically require patients to sign claim forms containing language consenting to the release of information about their care. The patient's signature authorizes the clinician to release such information. While HMOs do not require patients to submit claim forms, both clinicians and patients understand that the HMO or MCO can review clinical records at any time and may well review records if it questions the clinician's care.
Should the clinician rely on the patient's signed consent on the health insurance form or the HMO contract and release what she has in her chart (or a neutral version of that information)? Or should she consult the patient?
The better practice is for the clinician to frankly discuss with the patient what information she intends to disclose and the likely consequences of the alternatives open to the patient -- disclosure and refusal to disclose. Will the information the clinician sends explicitly or implicitly reveal the nature of the patient's problem? Does the patient's chart contain a substance abuse diagnosis? Once again, the clinician confronts the question of how such information should be charted. Has she balanced the need for accuracy with discretion and a respect for patients' privacy? Finally, even if the chart contains explicit information about the patient's substance use problem, can the clinician characterize the information and her diagnosis in more neutral terms when releasing information to the third party payer?
Once the patient understands what kind and amount of information the clinician intends to send the third party payer, he can decide whether to agree to the disclosure. The clinician should explain that a refusal to comply with the insurer's request for information may result in a loss of coverage for at least some related services. If the patient expresses concern, she should not mislead him, but confirm that once his insurer learns he has had a substance use problem, he could well lose his insurance coverage and be unable to obtain other coverage. 11 A patient whose employer is self-insured may fear he will be fired, demoted, or disciplined if the employer suspects he has abused alcohol or other drugs -- and he could be right. 12
The final decision should be the patient's. He may well decide to pay out of pocket. Or he may agree to the limited disclosure and ask the clinician to inform him if more information is requested.
As managed care becomes more prevalent throughout the country, clinicians are finding third party payers demanding more and more information about patients and about the treatment provided to those patients in order to monitor care and contain costs. Clinicians need to be sensitive about the amount and kind of information they disclose because there is a risk that this information may be used by the insurer to deny benefits to the patient. For example, if, in response to a demand from the insurer, the clinician releases the patient's entire chart, the insurer may learn from the clinician's notes that the substance abuse included the use of both alcohol and illegal drugs. The insurer may then deny benefits, arguing that since its policy does not cover treatment for abuse of drugs other than alcohol, it will not reimburse treatment when abuse of both alcohol and drugs is involved. Insurers have been known to use the information that a patient began drinking at age 11 to deny benefits because the alcohol problem is a "pre-existing condition." Chart notes may also contain detailed and very personal information about family life that may be unnecessary for a third party payer to review in order to determine whether and what kind of treatment should be covered.
As in so many other areas involving patients' privacy, it is best to follow two simple rules: First, keep notations and documentation as neutral as possible while maintaining professionally acceptable standards of accuracy. Second, consult the patient and let the patient decide whether to agree to the disclosure.
If a clinician gets a call from a lawyer asking about a patient or a visit from a law enforcement officer asking to see records or a subpoena to testify or produce medical records, what should he or she do? As in other matters of privacy and confidentiality, (1) consult the patient, (2) use common sense, and (3) as a last resort, consult State law (or a lawyer familiar with State law).
Say a lawyer calls and asks about Roger Smith's medical history or treatment. As a first approach to the question, the clinician could tell the lawyer, "I don't know that I have a patient with that name. I'd have to check my records" 13 or tell the caller that she must consult with her patient before having a conversation about him: "I'm sure you understand that I am professionally obligated to speak with Roger Smith before I speak with you." It will be hard for any lawyer to disagree with this statement.
The clinician should then ask the patient if he knows what information the caller is seeking and whether the patient wants her to disclose that or any other information. She should leave the conversation with a clear understanding of the patient's instructions -- whether she should disclose the information, and if so, how much and what kind. It may be that the lawyer is representing the patient in a case and the patient wants the clinician to share all the information she has. On the other hand, the lawyer may represent the patient's employer or some other party with whom the patient is not anxious to share information. There is nothing wrong with refusing to answer a lawyer's questions. 14
If the lawyer represents the patient and the patient asks her to share all information, the clinician can speak freely with the lawyer. However, if the clinician is answering the questions of a lawyer who does not represent the patient (but the patient has consented to the disclosure of some information), the clinician should listen carefully to each question, choose her words with care, limit each answer to the question asked, and take care not to volunteer information not called for.
A police officer, detective, or probation officer who asks a clinician to disclose medical information about a patient or a patient's medical records can usually be handled in a similar manner. 15 The clinician can safely tell the officer, as he might a lawyer, "I'm sure you understand that I am professionally obligated to speak with my patient before I speak to you." 16
The clinician should then speak with the patient to find out whether the patient knows the subject of the officer's inquiry, whether he wants the clinician to disclose information and if so, how much and what kind. The clinician might end the conversation by asking whether there are any particular areas the patient would prefer she not discuss with the officer.
When a law enforcement officer comes armed with a search warrant, the answer is different. In this case, the clinician has no choice but to hand over the records listed in the warrant.
Subpoenas come in two varieties. One is an order requiring a person to testify either at a deposition out of court or at a trial. The other, known as a subpoena duces tecum, requires a person to appear with the records listed in the subpoena. Depending upon the State, a subpoena can be signed by a lawyer or a judge. Unfortunately, it cannot be ignored.
In this instance, the clinician's first step should be to call Roger Smith -- the patient about whom she is asked to testify or whose records are sought -- and ask what the subpoena is about. It may be that the subpoena has been issued by or on behalf of Roger's lawyer with Roger's consent. However, it is equally possible that the subpoena has been issued by or on behalf of the lawyer for an adverse party. If that is the case, the clinician's best option is to consult with Roger's lawyer to find out whether the lawyer will object -- ask the court to "quash" the subpoena -- or whether the clinician should simply get the patient's consent to testify or turn over her records. An objection can be based on a number of grounds and can be raised by any party, including the person whose medical information is sought. Often, the clinician may assert the patient's privilege for the patient.
It is essential for primary care physicians to respect their patients' autonomy and rights to privacy and confidentiality if they are to be effective in screening and assessing patients for substance use disorders and persuading them to cut down their use or enter treatment. In most situations, clinicians can follow these simple rules: (1) consult the patient, (2) let the patient decide, and (3) be sensitive to how information is charted or disclosed. It is only as a last resort that the clinician will have to consult State law or a lawyer.
Margaret K. Brooks is an independent consultant in Montclair, New Jersey.
The full text of §2.11 now reads: Program means: (a) An individual or entity (other than a general medical care facility) who holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment; or (b) An identified unit within a general medical facility which holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment; or (c) Medical personnel or other staff in a general medical care facility whose primary function is the provision of alcohol or drug abuse diagnosis, treatment or referral for treatment and who are identified as such providers. (See §2.12(e)(1) for examples.) 60 Federal Register 22,297 (May 5, 1995).
The regulations provide that "federally assisted" programs include: Programs run directly by or under contract for the Federal government; Programs carried out under a Federal license, certification, registration, or other authorization, including certification under the Medicare Program, authorization to conduct a methadone maintenance treatment program, or registration to dispense a drug that is regulated by the Controlled Substances Act to treat alcohol or drug abuse; Programs supported by any Federal department or agency of the United States, even when the Federal support does not directly pay for the alcohol or drug abuse diagnosis, treatment, or referral activities; Programs conducted by State or local government units that are supported by Federal funding that could be (but is not necessarily) spent for the substance abuse treatment program; Tax-exempt programs. 42 C.F.R. §2.12(b).
For a full explanation of the Federal law and regulations, see TIP 8 (Center for Substance Abuse Treatment. Intensive Outpatient Treatment for Alcohol and Other Drug Abuse. Treatment Improvement Protocol (TIP) Series, Number 8. DHHS Pub. No. (SMA) 94-2077. Washington, DC: U.S. Government Printing Office, 1994) and TAP 13 (Center for Substance Abuse Treatment. Confidentiality of Patient Records for Alcohol and Other Drug Treatment. Technical Assistance Publication (TAP) Series, Number 13. DHHS Pub. No. (SMA) 95-3018. Washington, DC: Government Printing Office, 1994).
Luhdorff v. The Superior Court of Tulare County, 166 CA3d 485, 212 Cal. Rptr. 516 (5th District, 1985). Interestingly, Luhdorff was a criminal case in which the prosecution sought the records of an unlicensed social worker who interviewed the defendant, diagnosed his problem, determined the appropriate treatment, and treated him for 3 months. The social worker was working under a licensed individual's supervision. The defendant thought the social worker was a psychiatrist.
Section 451 of the California Evidence Code codifies the doctor-patient privilege. See Grosslight v. Superior Court of Los Angeles , 42 Ca 3d 502, 140 Cal. Rptr. 278 (1977), in which the court held that information communicated by the parents of a minor psychiatric patient to her doctor and his secretary was privileged, even though the parents were being sued on the theory that they knew their child was a danger to others.
Note that the breadth of the protection may vary according to the clinician's profession.
Grosslight v. Superior Court of Los Angeles , 72 Cal. App. 3d 502, 140 Cal. Rptr. 278 (1977), interpreting Section 451 of the California Evidence Code (see endnote 5).
Center for Substance Abuse Treatment. Alcohol and Other Drug Screening of Hospitalized Trauma Patients. Treatment Improvement Protocol (TIP) Series, Number 16. DHHS Pub. No. (SMA) 95-3041. Washington, DC: U.S. Government Printing Office, 1995.
The Consensus Panel for TIP 16 noted: "Physical separation of clinical information is not unusual. Patient charts from past years are generally kept in a separate location. Physicians routinely request charts to be sent to them from this location so that they can review historical clinical information about the patient. In addition, nurses are quite accustomed to keeping some medications locked up and accessible only to designated personnel" (TIP 16, Alcohol and Other Drug Screening of Hospitalized Trauma Patients. CSAT, 1995, p. 76. See endnote 9).
Some States prohibit insurance companies from discriminating against individuals who have received substance abuse treatment; however, these kinds of discriminatory practices continue. Insurance companies routinely share information about applicants for life and disability insurance through the Medical Information Bureau-a data bank maintained by a private organization and supported by the industry.
Although Federal and/or State law may prohibit the employer from firing the patient or from taking other action simply because the patient has entered treatment, discriminatory practices against recovering people continue to be a problem.
In fact, in some States, depending on the clinician's profession, the identity of patients as well as their medical records are protected. Therefore, clinicians should find out whether disclosing a patient's name or acknowledging that the individual about whom the lawyer is inquiring is a patient would be considered a violation of the patient's right to confidentiality.
A firm but polite tone is best. If confronted by what could be characterized as "stonewalling," a lawyer may be tempted to subpoena the information he is asking for and more. The clinician will not want to provoke the lawyer into taking action that will harm the patient.
The only exception to this advice would be if the clinician knew the patient was a fugitive being sought by law enforcement. In that case, in some States, a refusal to assist or give officers information might be a criminal offense.
As noted above, in those States where the identity of patients as well as their medical records are protected, the clinician should give a noncommittal response, such as, "I'll have to check my records to see whether I have such a patient."
