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At the point in the spectrum of human services where the criminal justice system lays claim to an involvement in the lives of people who are also clients of the substance abuse treatment system, there are several forces at work creating tension. The elements involved are just about the most volatile combination of confidentiality protections in American law, set at cross-purposes:

•  HIV/AIDS-related information is the most closely protected type of personal, private medical information in most states, and even an accidental disclosure can be unlawful (as in Michigan).

• An individual’s participation in a program for drug and alcohol abuse treatment is one of the most closely protected health-related activities under Michigan and federal law. (The other is seeking mental health treatment.)

• Substance abuse treatment programs that fall within the reach of federal confidentiality protections are among the most closely scrutinized programs under Michigan and federal law.

• Courts are the most authoritative source of information requests, and in fact are often the ultimate source of authority for seeking information, under Michigan and federal law.

Put HIV/AIDS-related information into the treatment progress notes of a drug court defendant who is seeking treatment from a federally regulated substance abuse treatment program, and show me a court that wants those records.

There is no more potent circumstance for a conflict among state and federal confidentiality protections.

Like several other states, Michigan has passed (July 21, 2004) legislation defining and creating Drug Treatment Courts, effective January 1, 2005.  There are some key features to the law, but also shortcomings and areas where it appears to conflict with 42 CFR Part 2.  These conflicts will have to be handled as the programs are implemented, and people who are HIV-positive will be especially vulnerable to inappropriate disclosures of their health information if court administrators do not remember the HIV confidentiality statute.

Kendra S. Kleber has identified drug courts as an area of social service that is likely to result in unintentional disclosures of HIV-related information. Legal training on this topic is frequently available from Kendra S. Kleber & Associates.