Using Consent Forms

The fact that a client has signed a valid consent form authorizing the release of information does not mean that a program must make the proposed disclosure, unless the program has also received a subpoena or court order (§§2.3(b)(1); 2.61(a)(b)). In most cases, the decision whether to make a disclosure authorized by a client’s signed consent is up to the program, unless State law requires or prohibits a particular disclosure once consent is given. The program’s only obligation under the Federal regulations is to refuse to honor a consent that is expired, deficient, or otherwise known to be revoked, false, or incorrect (§2.31(c)).

In general, it is best to follow this rule: Disclose only what is necessary, for only as long as is necessary, keeping in mind the purpose for disclosing the information.

Using consent forms to seek information from collateral sources

Making inquiries of families, partners, schools, employers, doctors, and other health care providers might, at first glance, seem to pose no risk to a client’s right to confidentiality. But it does.

When a program that offers assessment and treatment for substance abuse asks a family member (including a parent), partner, employer, school, or doctor to verify information it has obtained from the client, it is making a disclosure that the client has sought help for substance abuse. The Federal regulations generally prohibit this kind of disclosure unless the client consents.

How then is a program to proceed? The easiest way is to get the client’s consent to contact the family member (including a parent), partner, employer, school, health care facility, etc. In fact, the program can ask the client to sign a consent form that permits the very limited disclosure that he or she has sought assessment or treatment services in order to gather information from any one of a number of entities or persons listed on the consent form. Note that this combination form must still include “the name or title of the individual or name of the organization” for each collateral source the program may contact. If program staff are making inquiries by telephone, they must inform the parties at the other end of the line orally and then by mail about the prohibition on redisclosure.

Of course, the program should never disclose information about the client’s sexual orientation to a collateral source, unless the client specifically consents to disclosure to that particular person or agency. The consent form provided in exhibit 3–1 allows the client to choose whether to consent to disclosure of this information.

Using consent forms to make periodic reports or coordinate care

Programs serving LGBT individuals may need to confer on an ongoing basis with other agencies, such as mental health or child welfare programs. Again, the best way to proceed is to get the client’s consent (as well as parental consent when State law requires). Take care in wording the consent form to specify the purpose of the communication and the kind and amount of information to be disclosed. For example, if the program needs ongoing communications with a mental health provider, the “purpose of the disclosure” would be “coordination of care for Simon Green” and “how much and what kind of information will be disclosed” might be “treatment status, treatment issues, and progress in treatment.”

If the program is treating a client who is on probation at work and whose continued employment is contingent on completing treatment, the “purpose of disclosure” might be “to assist the patient to comply with the employer’s mandates” or to “supply periodic reports about attendance,” and “how much and what kind of information will be disclosed” might be “attendance” or “progress in treatment.” Note that the kinds of information that will be disclosed in these two examples are quite different. The program might well share detailed clinical information about a client with a mental health provider if that would help in coordinating care. Disclosure to an employer should be limited to a brief statement about the client’s attendance or progress in treatment. Disclosure of detailed clinical information to an employer would, in most circumstances, be inappropriate.

The program should also give considerable thought to the expiration date or event the consent form should contain. For coordinating care with a mental health program, it might be appropriate to have the consent form expire when treatment by either agency ends. A consent form permitting disclosures to an employer might expire when the client’s probationary period ends.

Programs should exercise great care about sharing information about clients’ sexual orientation. Disclosure of such information might be therapeutically important when a substance abuse program is coordinating a client’s care with a mental health provider. It would not be appropriate to disclose this information to a client’s employer. Programs should get clients’ consent in writing before making any disclosures about sexual orientation.

Using consent forms to make referrals

Programs treating LGBT individuals may need to refer clients to other health care or social service agencies. The program can, of course, give the client the name and telephone number of an outside gynecologist, psychologist, or training program and allow him or her to initiate the call. However, if a staff member at the program makes the call to set up an appointment, he or she must keep in mind that such a call may result in disclosure that the client has a substance abuse problem. If the staff member identifies the client as attending a substance abuse treatment program, directly or by implication, the referral requires the client’s consent in writing (as well as parental consent in States requiring it).

Unless the client has consented, the program should not disclose the client’s sexual orientation when making a referral.