.png)
A reoccurring discussion within the Treatment Court community is because of the requirement to keep treatment information confidential, should the court, as a court of law be open and transparent to the public? The struggle is real, protect the participants who are struggling with substance use disorders, and yet continue to recognize that as courts in a democratic society, they should remain open to the public. The challenge is finding the proper balance while walking that tightrope: confidentiality of treatment versus a public courtroom.
Confidentiality for Participants
Drug Treatment Court Key Component #1 states that: “Drug courts integrate alcohol and other drug treatment services with justice system case processing.” But, in following that Component, courts must keep any communication about someone’s participation in treatment confidential.[1] It is also important to recognize that these statutes determine how and under what circumstances treatment information may be disclosed. NADCP Best Practices states:
Contrary to some misconceptions, the HIPAA and other applicable confidentiality statutes (e.g., Confidentiality of Substance Abuse Patient Records, 42 C.F.R. Part 2) do not prohibit treatment professionals or criminal justice professionals from sharing information related to substance use and mental health treatment (Matz, 2014; Meyer, 2011b). Rather, these statutes control how and under what circumstances such information may be disclosed (U.S. DHHS, 2003). Treatment professionals are generally permitted to share confidential treatment information with criminal justice professionals pursuant to a voluntary, informed, and competent waiver of a patient’s confidentiality and privacy rights (45 C.F.R. §164.502(a)) or pursuant to a court order (45 C.F.R. §164.512(e)).[2]
[1] Treatment Courts are required to comply with 42 CFR, Part 2 (the federal regulations governing confidentiality of alcohol and drug abuse patient records) and with the Health Insurance Portability and Accountability Act (HIPAA) the federal law that protects confidential of protected health information. [2] Adult Drug Court Best Practice Standards, Volume 2, National Association of Drug Court Professionals (2018) pg. 42.; See also Adult Drug Court Standards, Best Practices, and Promising Practices, State Court Administrative Office Court Services Problem-Solving Courts, Michigan Association of Treatment Court Professionals (2021) B, pg. 17.
It is common for Treatment Court team members to share within the team some of the covered information while doing their work for the Treatment Court. However, that communication can only happen with a validly signed waiver by the participant. Additionally, Treatment Courts will have established “a memorandum of understanding on confidentiality and have all team members and replacement team members sign and agree to follow confidentiality procedures.”[1]
An Open Courtroom
Under Michigan law, when a court is in session, a court shall be open to the public.[2],[3]Furthermore, “All court proceedings under the Michigan drug court statute shall be open to the public.”[4] As a court proceeding, it is important to remember that court sessions are on the record.[5] What is said between a judge and a participant must be memorialized, to protect the participant and the judge. Communications between a participant and a judge when off the record, could be considered as ex parte communications.
Walking the Tightrope
Confidentiality matters. Treatment Courts in Michigan cannot be certified without proper confidentiality practices in place. New Treatment Courts must attended fundamental training on the confidentiality best practices.
Open courtrooms matter. Drug Court’s Best Practices and the statutes declare that all court proceedings shall be open, an apparent recognition that an open court promotes fairness, justice and a transparency of the law.
Ultimately, to balance the rights of the participant with the rights of the public, a Treatment Court should have two “files.” There is the public court file which does not contain confidential
[1]Adult Drug Court Standards, Best Practices, and Promising Practices, State Court Administrative Office Court Services Problem-Solving Courts, Michigan Association of Treatment Court Professionals (2021) B, pg. 21.
[2] See MCL 600.1420
[3] Healing to Wellness Courts operate under their own tribe’s laws, therefore they should consult their tribal code as to whether or not their courtrooms are open.
[4] Adult Drug Court Standards, Best Practices, and Promising Practices, State Court Administrative Office Court Services Problem-Solving Courts, Michigan Association of Treatment Court Professionals (2021) B, pg. 24, citing 600.1076(9).
[5] Additionally, while it is true that some judges do not wear a robe during Treatment Court sessions, or they wear one when arraigning a participant for a violation or when a sanction is imposed, and not during other times of the court session, judges should remember that pursuant to MCR 8.115(B), judges “shall” wear a black robe when acting in his or her official capacity. Presiding over “court proceedings” are part of a judge’s official capacity.