ACCESS TO INFORMATION IN JUVENILE COURT PROCEEDINGS
Courts look at both the specific laws related to substance abuse treatment records and the appropriate privilege statutes to determine whether to permit or order the disclosure of information.20
Note that these confidentiality provisions apply to any substance abuse treatment, whether it was undertaken voluntarily, involuntarily by an order of the Probate Court, or court-ordered as a consequence of some other type of legal proceeding, such as a criminal arrest or a neglect proceeding in juvenile court.
WHAT INFORMATION IS PROTECTED?
Broad protection is granted to all records related to the identity, diagnosis, prognosis, or treatment of any patient that are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation or research.21 It does not matter if the patient is no longer in treatment.22
There are two subsets of information that are defined in the federal regulations that have specific types of protection granted.
Patient identifying information means the name, address, social security number, fingerprints, photograph, or similar information by which the identity of a patient can be determined with reasonable accuracy and speed either directly or by reference to other publicly available information.23 This information may be disclosed for medical emergencies and research or audit purposes.24
Confidential communications are statements made by a patient to a program "in the course of diagnosis, treatment, or referral for treatment."25 This information may be disclosed only by court order under extremely limited circumstances.
Records of substance abuse treatment are not protected when they come within the scope of any state law requiring the reporting of suspected child abuse and neglect.26
WHAT IS REQUIRED FOR CONSENT TO DISCLOSE?
An individual may always consent to the disclosure of his or her own records. A written consent27 is required, and must include the following:
Each disclosure made with consent must be accompanied by the following written statement:28
This information has been disclosed to you from records protected by Federal confidentiality rules (42 CFR Part 2). The Federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by 42 CFR part 2. A general authorization for the release of medical or other information is NOT sufficient for this purpose. The Federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient.
WHEN CAN RECORDS BE DISCLOSED WITHOUT CONSENT?
Unless the individual consents to the disclosure, the only way for a party to obtain the information is by application to the court.29
A court order under the regulations is an order that authorizes the disclosure; it does not, by itself, compel the disclosure. The order must be accompanied by a subpoena or other legal mandate.30
The court may order the disclosure of patient records, other than confidential communications, if the party seeking disclosure demonstrates good cause. This includes "objective run-of-the-mill" data, including intake records, discharge records, attendance records, drug screen test results and records indicating compliance and noncompliance with treatment programs.31
If the request is for the disclosure of confidential communications, the party seeking disclosure must show good cause for the disclosure plus one of the following:
To obtain a court order for the disclosure of substance abuse treatment records, the party seeking the records must apply to the court for permission to issue a subpoena. The court order must then be attached to the subpoena and delivered to the health care provider. The records are then delivered to the court under seal. The court must hold a hearing at which the parties have the opportunity to be heard on whether the records should be disclosed. This hearing must be conducted to preserve the confidentiality of the information.
The order must narrowly define the scope of the order.34 Specifically, the order may:
The fact that the court permitted the disclosure does not effect the admissibility of the evidence at trial.
WHAT IF THE SUBSTANCE ABUSE TREATMENT WAS ORDERED BY THE COURT IN A CRIMINAL CASE?
A program may disclose information about a patient to those persons within the criminal justice system that have made participation in the program a condition of the disposition of any criminal proceedings against the patient or of the patient's parole or other release from custody if:
WHAT IF THE PATIENT IS A MINOR?
If the minor has obtained substance abuse treatment without the permission of a parent or guardian, then no information concerning the treatment may be disclosed to the parent or guardian without the minor's consent. Even if the parents consent to the treatment, if a minor voluntarily consents to the treatment, then only the minor can consent to the disclosure of the information.36 See Medical Treatment of Minors.