OFFICIAL OPINION No. 10

OFFICIAL OPINION No. 10 G011ernor's Council on Drng and Alcohol Abuse-Confi.dentiality-Patient Records 1. Section 8 of Act 63 of 1972 prohibits the release of the contents of a patient's records even with the patient's consent except in stated circumstances. 2. Section 6(c) of Act 63 of 1972 requires the Governor's Council on Drug and Alcohol Abuse to provide periodic reports on the progress of patients on con- ditional release status to appropriate local law enforcement officials. 3. Periodic reports under Section 6(c) should be drafted so as to exclude specific in- formation in the patient's record but to include information relating to the patient's progress m treatment so that law enforcement officials can make an in- formed judgment as to whether the present treatment program should be con- tinued, revised, or ended. 4. Patients on conditional release status may not give effective consent for an employer to receive information as to the patient's continued participation in the treatment program. Harrisburg, Pa. February 8, 1974 Richard E. Horman, Ph.D. Executive Director Governor's Council on Drug and Alcohol Abuse Harrisburg, Pennsylvania Dear Dr. Horman: You have requested my advice regarding the meaning of Section 8 of the Pennsylvania Drug and Alcohol Abuse Control Act of 1972 (Act No. 63). Specifically, you have asked: (1) Whether information from a patient's records can be released to criminal justice officials, such as judges and parole officers, if the patient has entered a treatment program through the criminal justice system; (2) Whether an employer of a patient in a drug treatment program may be informe~ by employ~s _of th~t program as to whether the patient contmues to participate m the treatment program. 36 OPINIONS OF THE ATTORNEY GENERAL I shall deal with each of these questions separately. I. In order to determine what information may be released to criminal justice officials, it is necessary to iJ!terp;-et. two apI?a:rent- ly contradictory sections of Ac~ 63. Th~ confidentiality prov1s!on of Act 63 provides broad protect10n agamst th~ release of any mfor- mation in the patient's record and even forbids the release of such information with the patient's consent in most circumstances: All patient records (including all records relating to any commitment proceedings) prepared or obtained pursuant to this act, and all information contained therein, shall re- main confidential and may be disclosed only with the patient's consent and only (i) to medical personnel ex- clusively for the purposes of diagnosis and treatment of the patient or (ii) to government or other officials ex- clusively for the purpose of obtaining benefits due to the patient as a result of his drug or alcohol abuse or drug or alcohol dependence except that in emergency medical situations where the patient's life is in immediate jeopar- dy, patient records may be released without the patient's consent to proper medical authorities solely for the pur- pose of providmg medical treatment to the patient. Dis- closure may be made for purposes unrelated to such treat- ment or benefits only upon an order of a court of common pleas after application showing good cause therefor .... No such records or information may be used to initiate or sub- stantitate criminal charges against the patient under any circumstances. Section 8(b). As to disclosures from private drug treatment programs, the Act imposes the same requirements except that it does not provide for disclosure for purposes unrelated to treatment or benefits upon an order of a court of common pleas. See Section 8(c). On the other hand, Act 63 also provides: The Council shall provideferiodic reports and recommen- dations to the Bureau o Correction and the Board of Probation ~nd Parole and appropriate local agencies on persons bemg treated pursuant to this section. Section 6(c). " In short, Act. 63 pro"'.ides that, a.lthough the information in the complete me~1cal , social, occupat10nal, and family history" that must be obtame~ as a :Ra.rt of .the patient's records may not be released except II! spec1f.1ed. circumstances, the Council must, nevertheless, prov1~e . periodic reports and recommendations to law enforcement offi.c1als on the ~tatus of t0e person. being treated. The pr<?blem, the.n, !S to determme what mformat10n may be in- clude~ m the periodic report without violating the confidentiality of patient records. OPINIONS OF THE ATTORNEY GENERAL The Statutory Construction Act provides: Whenever a general provision in a statute shall be in con- flict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. 1 Pa. S. §1933. 37 Of course, in giving effect to all the provisions of a statute, it is necessary to construe the statute so as to give effect to the legislative intent as expressed, primarily, in the language of the statute. 1 Pa. S. §1921(a), (b). The purpose of the periodic reporting requirement is clear from the context of that provision. The Bureau of Correction, the Board of Probation and Parole, and appropriate local agencies are authorized in this same provision to" ... transfer an offender placed on conditional release from one treatment service to another, depending ,upon his response to treatment." Section 6(c). The deci- sion whether to revoke or restrict the conditional release status is to be made partly on the basis of whether there has been "failure to conform to a schedule for rehabilitation." Id. In short, the periodic report and recommendation requirement is designed to provide criminal justice officials with enough information for an informed determination as to whether the patient should be continued in the present treatment program or should be moved to a correctional setting. Of course, nearly all of the informatio:rt contained in the patient's records would be useful in making such a determination. However, Section 6(c) must be read in conjunction with the con- fidentiality section, Section 8. The clear intent of Section 8 is to protect not only the patient (for even the patient may not consent to the disclosure of information for most purposes) but also to protect the integrity of the treatment process itself. To understand the need for such protection, it is necessary to read Act 63 in conjunction with its companion act, the Penn- sylvania Drug and Alcohol Abuse Control Act (Act No. 64 of 1972). Act 64 is a new departure in law enforcement in that it permits diversion from the criminal justice system to the treatment process at a number of points in the judicial :process. See, e.g., Sections 17 and 18 of Act 64. This new departure is entirely consistent with the emphasis in Act 63 on viewing drug and alcohol abuse or dependence as a major health problem. See Sections 9 and 10. Read together, then, Act 63 and Act 64 create the potential for an enormous intrusion of the criminal justice system into the medical and psychological treatment process. The Legislature thought it necessary, t~erefore, to r~strict t~e acce~s of of~icials of the criminal justice system to informat10n obtained during the treat- ment process, so that the privacy and cando~ so necessary for medical treatment or psychological counselling would not be jeopardized. The Legislature did not intend every caseworker, doctor, or psy- 38 OPINIONS OF THE ATTORNEY GENERAL chologist working in the area of drug ~reatment to become. f~ct­ finding agents of the prosecutor's office or of the comm1ttmg judge. The dual legislative purposes expressed by Sections 6 and 8 of Act 63 can both be given full expression if: (1) the Council adopts regulations requiring periodic reporting to appropriate law en- forcement agents on the progress that a patient is making in the drug treatment program; and (2) the contents of that report are restricted so that none of the substance of any medical, psychiatric, or counselling interview is revealed. 1 The report should indicate the nature of the treatment program. A general statement as to the patient's progress and prognosis should also be included. For ex- ample, such a statement should indicate whether there have been relapses into drug abuse and whether these relapses are frequent; it should also indicate whether the patient is making an effort to meet the demands of the treatment program. In no event should specific information divulged during the treatment process-such as the source of drugs or the nature of the patient's family situa- tion, etc.-be included in the report. In summary, Act 63 requires the Council to furnish local law en- forcement officials with periodic status reports of the patient's treatment program. However, the Council should adopt regulations ensuring that the information provided is conclusory, so that the integrity of the treatment process itself can be protected. 2 II. The answer to your second question-whether employers may be informed of the fact that their employes are no longer continuing in the treatment program-is indicated from the above discussion. Section 8(b) states that the patient's records and all information contained in those records may be disclosed "only with the patient's consent and only" to medical personnel for certain purposes and to government and other officials only to obtain benefits due the patient. The provision contains no exception for an employer. The fact that a position of employment may have been obtained by way of an explicit or implicit waiver of the right to confidentiality by the patient is irrelevant since even with the patient's consent. the information may be released only for the stated purposes. It should 1. HC!wever, if release has been conditioned upon the patient's agreement to periodic urinalysis, the results of that urmalys1s may be revealed to the appropriate law enforcement officials. See Section 16(4) of Act 64. 2. Th is discussion relates on ly to the reports and records kept as a part of the treat- ment process. The control of other types of information also falls under the jurisdiction.of the Council. Specific provisions of Act 63 relate to the permissible use of s.uch mfo_rmat10n. I call your attention to the following provisions: as to in- format10n obtamed pursuant to the Council's coordination of scientific research and . experiment, see Section 4(a)(7); as to the gathering and publishing of stat1st1cs, see Sect10n 4(e); as to mformat1on to be used to initiate or substantiate cnmmal charges, see the complete prohibition in Section 8(b). OPINIONS OF THE ATTORNEY GENERAL 39 be noted, however, that an employer can find out whether his employe is continuing in the drug treatment program through other sources. For example, he can ask his employe he can contact the employe's family, he could contact the prosec~tor's office or relevant probation or parole officer. Each of these sources would have to decide whether it would be appropriate under the cir- cumstances to divulge the information. However, those treatment programs subject to regulation by the Council may not carve an ex- ception to Section 8 for a patient's employers. Very truly yours, Robert F. Nagel Deputy Attorney General Israel Packel Attorney General