Consent: Rules About Obtaining Consent To Disclose Treatment Information
The most frequently used exception to the regulations' general rule prohibiting disclosure is client consent. (Parental consent must also be obtained in some States. See below.) The regulations' requirements regarding consent are strict and somewhat unusual and must be carefully followed.
Most disclosures are permissible if a client has signed a valid consent form that has not expired or been revoked ( §2.31). To be valid, a consent form must be in writing and must contain each of the items specified in §2.31:
1. The name or general description of the program(s) making the disclosure
2. The name or title of the individual or organization that will receive the disclosure
3. The name of the client who is the subject of the disclosure
4. The purpose or need for the disclosure
5. How much and what kind of information will be disclosed
6. A statement that the client may revoke (take back) the consent at any time, except to the extent that the program has already acted on it
7. The date, event, or condition upon which the consent will expire if not previously revoked
8. The signature of the client (and, in some States, his or her parent)
9. The date on which the consent is signed ( §2.31(a)).
A general medical release form, or any consent form that does not contain all of the elements listed above, is not acceptable. (See the sample consent form in exhibit 3-1.)
A number of items on this list deserve further explanation and are discussed under the bullets below.
· The purpose of the disclosure and how much and what kind of information will be disclosed
These two items are closely related. All disclosures must be limited to information that is necessary to accomplish the need or purpose for the disclosure, and this purpose or need must be specified on the consent form. It would be improper to disclose everything in a client's file if the recipient of the information needs only one specific piece of information.
Once the purpose or need has been identified, it is easier to determine how much and what kind of information will be disclosed, tailoring it to what is essential to accomplish the specified need or purpose. That, too, must be written into the consent form.
As an illustration, if a client needs to have his or her participation in counseling verified in order to be excused from school early, the purpose of the disclosure would be "to verify treatment so that the school will permit early release," and the amount and kind of information to be disclosed would be "times and dates of appointments." The disclosure would then be limited to a statement saying, "Susan Taylor (the client) is receiving counseling at XYZ Program on Tuesday afternoons at 3 p.m."
· The client's right to revoke consent
The client may revoke consent at any time, and the consent form must include a statement to this effect. Revocation need not be in writing. If a program has already made a disclosure prior to the revocation, acting in reliance on the client's signed consent, it is not required to try to retrieve the information it has already disclosed.
The regulations also provide that "acting in reliance" includes the provision of services while relying on a consent form permitting disclosures to a third-party payer. (Third-party payers are health insurance companies, Medicaid, or any party other than the adolescent's family that pays the bills.) Thus, a program can bill the third-party payer for services provided before the consent was revoked. However, a program that continues to provide services after a client has revoked a consent authorizing disclosure to a third-party payer does so at its own financial risk.
· Expiration of consent form
The form must also contain a date, event, or condition on which it will expire if not previously revoked. A consent must last "no longer than reasonably necessary to serve the purpose for which it is given" ( §2.31(a)(9)). Depending upon the purpose of the consented disclosure, the consent form may expire in 5 days, in 6 months, or in a longer period.
The consent form does not have to contain a specific expiration date but may instead specify an event or condition. For example, if an adolescent has been placed on probation at school on the condition that she attend counseling at the program, the consent form can be drafted to expire at the completion of the probationary period. Or, if a client is being referred to a podiatrist for a single appointment, the consent form should stipulate that consent will expire after he or she has seen "Dr. X." (See below for further discussion about making referrals.)
· The signature of the client (and the issue of parental consent)
A minor must always sign the consent form in order for a program to release information even to his or her parent or guardian. The program must get the signature of a parent, guardian, or other person legally responsible for the minor in addition to the minor's signature only if the program is required by State law to obtain parental permission before providing treatment to a minor ( §2.14).
In other words, if State law does not require the program to get parental consent in order to provide services to a minor, then parental consent is not required to make disclosures ( §2.14(b)). If State law requires parental consent to provide services to a minor, then parental consent is required to make any disclosures.
Note that the program must always obtain the minor's consent for disclosures and cannot rely on the parent's signature alone. (For a full discussion of this issue and what programs can do when minors applying for treatment refuse to consent to parental notification in those States requiring parental consent to treatment, see "Legal and Ethical Issues," in Treatment Improvement Protocol 32 Treatment of Adolescents With Substance Use Disorders (CSAT, 1999c).
Where LGBT minors are concerned, the issue of parental consent can be a particularly delicate matter. Minors in States requiring parental consent for treatment can specify on the written consent form that their sexual orientation will not be disclosed to parents (see exhibit 3-1).
· Required notice against redisclosing information
Once the consent form has been properly completed, there remains one last formal requirement. Any disclosure made with patient consent must be accompanied by a written statement that the information is protected by Federal law and that the recipient cannot further disclose or release such information unless permitted by the regulations ( §2.32).
This statement, not the consent form itself, should be delivered and explained to the recipient of the information at the time of disclosure or earlier. (Of course, a client may sign a consent form authorizing a redisclosure.)