1. NIAAA Social Work Education Module 9
Legal and Ethical Issues in Prevention and Treatment of Alcohol Use Disorders
NIAAA Social Work Education
Module 9
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[Slide 1] Introduction
This module delineates the special ethical and legal concerns related to the treatment and prevention of alcohol use disorders. General ethical guidelines established by the National Association of Social Workers (Code of Ethics, 1996) and state licensing laws are relevant to the area of substance abuse practice. It is assumed that social workers graduating from accredited programs are fully aware of, and compliant with, these guidelines. This module focuses on the special issues that pertain to alcohol use disorders:
Confidentiality
Informed consent
The duty to care
Respecting client self-determination
Credentialing mechanisms
(revised 3/04)

2. Outline Background information Confidentiality Informed consent
The duty to care
Respecting client self-determination
Credentialing mechanisms
[Slide 2] Learning Objectives
By the end of this module, learners should be able to:
Recognize the unique confidentiality requirements for alcohol use disorder (AUD) treatment and prevention programs
Understand the special requirements pertinent to obtaining informed consent for substance abuse treatment programs
Consider the issue of ‘duty of care’ as it relates to this population and to these programs
Become familiar with those aspects of respect for self-determination that frequently arise in this area
Become familiar with emerging requirements for documentation by practitioners of specific competencies in the field of substance abuse

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Background
Autonomy
Nonmalfeasance
Beneficence
Justice
Fidelity
Veracity
[Slide 3] Background
Ethical concerns in alcohol treatment are often complex and multidimensional and may or may not be addressed in laws and professional ethics codes (Corey, Corey, & Callanan, 1998). Codes of ethical practice serve to educate and inform professionals about sound ethical behavior. They may mandate a minimal standard of practice, though not necessarily the highest standards or “best practices” to which we aspire. Moral principles form the basis of social work’s professional code of ethics: autonomy (including client self-determination), nonmalfeasance (avoiding harm), beneficence (promoting good for others), justice (fair and equitable treatment to all people), fidelity (honoring commitments), and veracity (truthfulness).
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4. Confidentiality
Confidentiality concerns may deter individuals from seeking needed alcohol treatment services
Drug Abuse Prevention, Treatment, and Rehabilitation Act (21 U.S.C. 1175)
Section 42 of the Code of Federal Regulations, Part 2 (CFR)
[Slide 4] Confidentiality
The Surgeon General's report on mental health (Office of the Surgeon General, 1999) cites empirical studies showing that a concern about lack of confidentiality may deter individuals from seeking needed treatment for alcohol use disorders. Increasing the self-referral into treatment of those with alcohol use disorders was the impetus for the Drug Abuse Prevention, Treatment, and Rehabilitation Act (21 U.S.C. 1175) and its specific provisions for protecting client confidentiality. The requirements of this legislation have been codified in section 42 of the Code of Federal Regulations, Part 2 (CFR). Other entities that also sanction the imperative of maintaining client confidentiality include: the NASW Code of Ethics (1996), state licensing laws conferring privileged communication, and the Americans with Disabilities Act where provisions are particularly relevant to clients with alcohol use disorders and are referred through EAP programs.

5. Confidentiality (continued)
Release of information
Primary source
Secondary source
Third entity
[Slide 5] Provisions in the CFR The Substance Abuse and Mental Health Services Administration (SAMHSA) has issued several technical reports explaining the CFR confidentiality requirements. Some of the major provisions that apply to direct practitioners are set forth here, although those provisions targeting program administrators are not discussed.
Particular provisions in the CFR that differ from established social work practice in other areas include:
Recommendation of a particular and specific release of information form
A provision that when a primary source releases information to a secondary agency, this secondary agency cannot release the information to a third entity. A paragraph explaining this restriction is to accompany all releases of information to the secondary source.
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6. Confidentiality (continued)
Limitations to confidentiality: informing clients up front
What are the limitations?
Limitation related to minors
[Slide 6]
Recommendation to inform clients in writing, upon entry into or application for, treatment as to limitations on confidentiality. A sample statement that might be adopted by the agency is provided in CFR 42.
A list of limitations on absolute confidentiality that includes medical emergencies, compliance with state child abuse reporting laws, contacting criminal justice authorities if a client threatens to commit or commits a crime against the treatment center, and compliance with court orders.
Confidentiality can be extended to minors if the relevant state statute gives the minor the right to consent to substance abuse treatment.
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7. Confidentiality (continued)
To whom do the rules apply?
To what do the rules apply?
What about security?
[Slide 7]
CFR identifies those professionals to whom CFR regulations apply. These entities include drug and alcohol treatment facilities with tax-exempt status, agencies receiving any form of programmatic federal government funding, private practitioners who receive Medicare payments, and federally-supported agencies that refer clients for drug and alcohol treatment.
The type of information that is confidential includes the client's status as a person who has either received or requested an alcohol use disorder diagnosis or treatment for an alcohol use disorder.
Records with personally-identifiable information are to be secured and under lock.
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8. Confidentiality (continued)
Additional Circumstances:
Mandatory reporting
Tarasoff and the duty to warn/protect
Specific occupations
Minors
Driving drunk
HMOs
[Slide 8] Other Confidentiality Limitations
Additional confidentiality limits have emerged since CFR issuance in l987.
Mandatory reporting statutes related to family violence.
Definitions of child abuse that include intemperate alcohol use or illegal drug use when witnessed by children.
Pedophile reporting laws and elder abuse reporting laws.
CFR 42 does not reference these situations, although provision (2.20) states: "no State law may either authorize or compel any disclosure prohibited by these regulations.“
Issues of confidentiality have emerged with both HIV and TB reporting to Public Health officials. SAMHSA has guidelines for complying with state public health laws while also complying with CFR 42 (SAMHSA TIP 18, 1995; SAMHSA TAP 13, 1994).
The Tarasoff v California Board of Regents ruling established the professional’s duty to warn or protect. In situations of ethical dilemmas, social workers should seek counsel from colleagues (including the state licensing board) and record the gist of the discussion in the client record.
For minors, maintaining confidentiality from legal guardians cannot be promised. Minors require parental permission to engage in treatment, although some states allow minors to contract for substance use treatment without permission. Whether therapists should notify parents if they obtain information that a child's life is endangered is unclear, particularly if a parent can take preventive action. Consult the statutes governing parental notification for the entity sponsoring the program.
Outpatient programs often have rules against allowing clients to participate in group therapy while intoxicated. If intoxicated clients are routinely denied participation, some mechanism for transporting clients home (without driving their vehicles) should be established.
Many persons receive their care through HMOs. Treatment for alcohol use disorders is often provided "in-house", and any information that the client provides to the social worker (who is both an HMO employee and a treatment provider) can be used to disenroll the client.
  If a client is an immediate danger to self or others, and it is a product of mental illness, the situation becomes grounds for commitment in most states. CFR 42 Part 2 considers medical emergencies to be grounds for breaching confidentiality
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9. Confidentiality (continued)
Informing clients regarding limits to confidentiality
Disclosure
Disclosure and therapeutic alliances
Duress
[Slide 9] Informing Clients as to the Limits on Confidentiality
Both the NASW Code of Ethics (1996) and the CFR 42 Part 2 recommend that clients be apprised of the limits on client confidentiality before they begin to disclose. This is part of obtaining informed consent.
Information That Must Be Conveyed - State statutes generally specify the information that professionals are required to report. Only a judge can issue a court order mandating information that exceeds the requirements of a reporting law.
Turning the Duty to Disclose into a Therapeutic Opportunity - While a client might feel betrayed by the social worker's breach of confidentiality even though required by law, it might be possible to use the situation to further a therapeutic alliance with the client. It may be possible to reframe the situation in non-adversarial terms with the client and social worker conjointly reporting information to the authorities.
Relinquishing Confidentiality under Duress
The types and frequency of mandatory treatment referrals are greatly expanding. Drug courts may provide court-ordered treatment in lieu of criminal sanctions or termination of parental rights, and they often make avoidance of negative outcomes contingent on treatment participation. Similarly, Employee Assistance Programs (EAPs) often mandate that continued employment is contingent upon treatment participation and progress. Further, many ‘driving-under-the-influence’ (DUI) statutes also require mandatory treatment as a requirement for regaining or maintaining a driver's license. 
The current practice of free exchange of information between treatment providers and those empowered to impose sanctions, has probably discouraged some clients from disclosing information that might result in negative consequences to them. Data attest to the efficacy of mandatory treatment for alcoholism (Littrell, l99l). However, evaluation of how relinquishing confidentiality impacts treatment outcome has not occurred.
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Informed Consent
Obtaining consent
Explaining options
Medication?
[Slide 10] Informed Consent
All states, with the possible exception of Georgia, have statutes mandating that health professionals obtain informed consent for treatment (Appelbaum, Lidz, & Meisel, l987). Failure to obtain or document informed consent may be a source of malpractice liability (Corey et al., 1998). It is likely that these informed consent requirements extend to mental health practitioners, as well as to general health practitioners (Appelbaum et al., l987). Some statutes require that health care providers explain the risks and benefits of the proposed treatment, as well as the risks and benefits of alternative treatments (including combined treatment modalities (Zweben, 2001).
When various treatment modalities are available, the social worker should be able to explain the differences in orientation of the various approaches and the differences in efficacy. Data on the efficacy of medications for the treatment of alcoholism (e.g., disulfiram, acamprosate, naltrexone, selective serotonin reuptake inhibitors) are emerging (Erickson & Wilcox, 2001; Zweben, 2001). Non-physician mental health practitioners probably have a duty to inform clients of the availability of medications for their particular conditions (Littrell & Ashford, l995). As more data become available, the obligation to discuss the various treatment options will become more binding.
This also obligates the social work professional to gain and maintain familiarity with the empirically-based considerations of the various available approaches. The obligation to explain alternative treatments raises the issue of how much knowledge a social worker must have about medications. If the social worker is poorly informed, a client referral would probably suffice to meet informed consent obligations.
Issues have been raised as to whether discussing medications with a client might be construed as ‘practicing medicine without a license’ (Littrell & Ashford, l995). A non-physician should never advise a client to either take or stop taking any medication.
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11. Informed Consent (continued)
Issues of Consent:
Client competency
Client comprehension of information being presented
Client autonomy (voluntary without duress)
[Slide 11]
Informed consent is based on the following presumptions:
Conflicts with presumptions when an alcohol use disorder is present:
Client is competent to make informed decision about self-interests
Client with impaired cognitive capacity due to chronic alcohol abuse
Client comprehends information being presented for consent
Clients who are young or from other cultures may have difficulty understanding consent form
Consent is voluntary without coercion,
undue influence, or duress (Parsons 2001)
Mandated clients are not voluntarily consenting to service
It is imperative that social work practitioners explore and address these issues of consent.
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Duty to Care
Obligation to provide service vs. termination for violating treatment plan
Motivation?
Non-drinking policies?
Non-medication policies?
[Slide 12] Duty to Care
Establishing Criteria for Terminating Client Treatment
Alcohol treatment programs often establish policies against continuing to work with clients who continue to relapse, and sobriety may be a criterion for continued treatment. There also may be rules against talking with an intoxicated client.
 In many settings, clients with other DSM-IV disorders are not discharged for failing to comply with the rules. If a treatment provider has an obligation to treat a disease, then the provider tolerates the unpleasant manifestations of that disease while attempting to decrease them. If denial and lack of motivation are viewed as part of the alcoholism disease process, it seems unethical to terminate treatment if a client manifests these symptoms.
Some perspectives view motivation as a product of the interaction between the therapist and the client. Both share responsibility for a client's motivation. Abstinence is possible, even for clients who initially embrace a controlled drinking goal or indicate that they have no intention to change. Through the processes of engaging, eliciting, and empowering, clients sometimes modify their goals.
  Data are available to support the Motivational Interviewing perspective. In Europe, treatment programs with controlled drinking goals are often the vehicle by which clients change their goals and achieve sobriety. Even though some individuals continuously relapse, Valliant's work suggests that many individuals eventually reach sustained recovery. In light of these findings, it seems inappropriate to seek termination simply due to continued drinking.
As an additional concern, some traditional treatment programs require that clients refrain from the use of all mood- or mind-altering chemicals while in treatment. Although exceptions are sometimes made for medications treating schizophrenia, bipolar illness, or anxiety disorders, some programs consider these drugs to be mind-altering. Sometimes clients who are patients at pain clinics will apply for alcohol treatment. It is not uncommon for pain patients to be prescribed opiate drugs for pain, and benzodiazepines as muscle relaxants. Often physicians treating pain patients have experimented with many drug combinations to find a regimen that offers some modicum of relief and are reluctant to make alterations. When a client applies for entry into a substance abuse treatment program, is it fair to deny treatment on the basis of medications that are taken under the direction of a physician? Are traditional treatment programs under any obligation to meet the unique needs of chronic-pain patients?
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13. Practice Standards
Alcohol treatment specialists in social work (NASW specialty in ATOD)
Standards for care (e.g., ASAM)
Resources limit access?
[Slide 13] Trend Toward Emerging Standards of Practice
In social work, ATOD is an area of specialization. ATOD specialists can screen for alcohol use disorders, treat alcoholism, and recognize an acute need for detoxification. In the mental health area, responsibility for diagnosing within one's area of expertise constitutes a duty of care. What level of diagnostic acumen can the public expect from a non-ATOD specialist social worker in cases of acute detoxification or the presence of an alcohol use disorder?
Specific standards of care are emerging for the practice of medicine. Individual physicians have much less latitude in determining the treatments offered to patients. For example, AHRQ has issued guidelines for the treatment of major depression. The APA has guidelines for the treatment of smoking cessation. Medicare specifies the number of in-patient days that will be compensated for each Diagnostic Related Group.
In the area of alcohol use disorders, ASAM has issued standards for levels of care (Mee-Lee, l994; Frames.htm). These standards address, for in-patient or out-patient treatment, the number of hours of therapeutic contact per week recommended for clients in various categories. For the present, social workers should at least be aware of ASAM criteria and other relevant standards of care so that they can justify their actions if they deviate from a standard of care.
The most common reason for failure to comply with an ASAM standard is the lack of a payment mechanism for treatment. ASAM recommends in-patient treatment for substance abusers who lack social support. Many homeless individuals fall into this category and the availability of in-patient treatment is dwarfed by the size of the homeless community. Managed care clients experience similar limitations on access to recommended levels of care (Galanter, Keller, Dermatis & Egelko, l999). How to be ethical when resource limitations preclude good treatment is an issue that must be addressed.

14. Factual Information Empirical support for “facts”
Informed populations (internet and other media sources, public access to scientific reports)
Social work responsibility to be informed
[Slide 14] Factual Information
According to the American Psychological Association's code of ethics (l992, 3.03a, 6.03a, 7.04), ethical psychologists should have supporting data for factual statements that they make. There is no similar provision in the NASW Code of Ethics, but the question of whether or not there should be does arise. In l935, only limited data were available to support or refute the theory of alcoholism that was propounded with the advent of AA. In recent years, a great deal of empirical research has tested some theoretical hypotheses (Littrell, l991). Should an ethical social worker be required to stay apprised of data supporting and refuting various perspectives? To what extent should social workers be required to distinguish between facts and opinions when talking with clients? Again, social work guidelines have not been proffered.
Quite apart from the ethical obligation to adhere closely to facts when speaking with clients, there is a practical necessity. The American community has better access to information than in the past, particularly through internet and other media sources. For example, findings from the Rand report indicating a sizable proportion of individuals who had been treated for alcoholism had achieved a controlled drinking recovery, was widely publicized (see Littrell, l99l). Given a highly informed client community, it is incumbent upon social workers to stay abreast of emerging research in their field in order to maintain credibility.

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Self-Determination
Mandated services vs. types of services
Cultural sensitivity, difference in “world views”
Setting treatment goals (controlled drinking vs. abstinence)
[Slide 15] Client Self-Determination
Mandated Services - A modest amount of literature discusses social work practice with involuntary and/or nonvoluntary clients (De Jong & Berg, 2001; Rooney, 1988: Rooney, 1992). Mandated treatment conflicts with values of client autonomy and self-determination. Aside from the question of whether treatment can or should be mandated, are questions about the types of treatment being mandated. Glaser and Warren (l999) summarize court cases with rulings that AA cannot be mandated as a sole source of treatment. This violates the separation of church and state provisions in the First Amendment to the Constitution.
Respect for Differences in Culture and World Views - The predominating forms of treatment in this country (Littrell, l99l) view education as a critical component. Therapists must recognize when professional practice literature differs in perspective from that of clients. For some clients, the concept of admitting loss of control and being powerless over alcohol may be perplexing or disturbing. Profound gender-related implications surround issues of power and control. A diagnostic item in Jellinek's (1946) progression of alcoholism is "keeping company with individuals below one's social status." For a person raised in an egalitarian society, this might be difficult to grasp. Taking an inventory and assessing for "character defects" may cause some to wonder how to define "character defect" in a non-culturally biased manner.
Respect for cultural diversity is infused throughout the social work education. However, it is often difficult to recognize when one's own cultural rearing results in concepts, perspectives, frames of reference, and practices that are not universally shared. Self-critical evaluation, and acknowledgement of discrepancies between the practitioner's and client’s perspectives, should be a routine aspect of the social worker’s demonstration of respect for cultural diversity.
Controlled Drinking Goals - One of the most controversial issues in the field of alcohol use disorders is if controlled drinking is an achievable objective (Goldsmith et al., l994). Controversy aside, this issue does fall under the rubric of client self-determination. Who has the right to select the treatment goal -- the client or the treating professional?
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Credentialing
Mandated qualifications
Specialization certifications
MSW plus…
NAADAC
ICRC
ATOD
[Slide 16] Credentialing for Alcohol Treatment Providers
In some states, authorities have mandated specific qualifications for treatment providers who provide services to clients with alcohol use disorders. Evidence of specific competence in the field of substance abuse, in addition to a generic professional licensure, is usually expected (Institute of Medicine, l990; Moyers & Hester, l999). Generally, states have honored certification through the National Association of Alcohol and Drug Abuse Counselors (NAADAC) or the International Certification Reciprocity Consortium (ICRC). When a human services profession has developed a specific certification procedure for competence in substance abuse (e.g., psychology, social work, medicine), states have honored these certificates, as well.
With the initiation of ATOD (Alcohol Tobacco and Other Drugs) certification, NASW sought to provide a mechanism through which professionals wishing to maintain their identity as social workers, could document competence. Social workers desiring NASW’s ATOD certification should be aware that 180 hours of continuing education in substance abuse are required within specifically delineated areas of instruction (see checklist associated with this curriculum). In order to guarantee competent social work practice to the population of individuals with alcohol use disorders, each of us should continue to demand high-level substance abuse training in the social work MSW curriculum. It is probably easiest to obtain the required course work for certification while one is working toward completion of an MSW degree.
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17. Additional Materials for Social Work Education Opportunities
Appendices
Additional Materials for Social Work Education Opportunities

18. Tarasoff vs. California Board of Regents
Duty to warn prospective victims of a client’s intentions
Possible Tarasoff situations:
HIV positive client having sex with unaware partner?
Client whose intoxication/hangovers could jeopardize lives? (e.g., pilots, drivers, medical care personnel)
Teenagers practicing unsafe sex?
Riding with drunk drivers, driving drunk?

19. Solutions?
Be proactive and preplan (e.g., develop policies for sending drunk clients home safely)
Consult colleagues
Know relevant policies (e.g., school rules, local laws)
Understand duty to commit clients who are an acute danger to self or others
Inform clients BEFORE beginning treatment (informed consent and limitations to confidentiality)