IN DEFENSE OF DRUG COURT CONFIDENTIALITY

RHODE ISLAND'S newly created drug court has received considerable
criticism from the Fourth Estate over its relatively short life span.
In particular, many media outlets have expressed concern over the
court's policy of closing the courtroom to all but drug court
participants, thus conducting court proceedings in "secret."

Leading this onslaught has been The Journal, which, along with other
publications, has charged that closing the court off to the public
threatens the very essence of a free society. In a March 26 editorial,
The Journal explains that this practice could potentially lead to
"political favoritism or rank injustice through abuse of power." The
paper goes on to suggest that the drug court justifies its policy
through an extremely limited interpretation of federal law.

Clearly the Journal (which supports the drug court concept) is either
unaware or unconcerned with the legal, ethical, and ideological
principles that govern such a program. In particular, the paper
mischaracterizes the confidential nature of the proceedings and fails
to appreciate the extent to which the drug court is bound by federal
law. In addition, the paper does not recognize the essential role
confidentiality plays in encouraging addicts to seek help.

At the heart of The Journal's argument is concern that once a case is
accepted into the drug court program the file is closed to the public.
What the paper fails to mention is that all drug court participants
are given the option of signing a disclosure form that lets otherwise
unauthorized individuals (including members of the press) view the
proceedings. Federal regulation 42 C.F.R, 2.32 provides for consensual
disclosure, and the Rhode Island drug court abides by this law.

Critics who question Rhode Island's interpretation of federal
confidentiality laws should perhaps take the time to read these
statutes themselves. Among federal laws regulating the disclosure of
information, the most significant for the drug court is Section
290dd-2 of title 42 of the U.S. Code. Under Section 290dd-2, all
records relating to the "identity, diagnosis, prognosis, or treatment
or referral for treatment of any patient" in a substance-abuse program
are confidential. This applies to any drug court that "holds itself
out as providing, and provides, alcohol or drug abuse diagnosis,
treatment or referral for treatment." "A drug court is covered by this
statute if its employees conduct screening or assessments to diagnose
participants as substance abusers," explains a National Drug Court
Institute publication.

"If employees of the court refer participants to drug treatment, then
the court is a program covered by Section 290dd-2," the institute
further asserts. With this in mind, it is difficult to see where
critics find room for statutory interpretation.

Finally, The Journal fails to recognize that confidentiality protects
potentially stigmatizing information from being disclosed and, in so
doing, encourages clients to accept treatment. By prohibiting
counselors from revealing patient disclosures, confidentiality also
encourages substance abusers to be open and cooperative during
treatment. Without a doubt, it is difficult enough for a drug addict
to admit to having a problem and seek help. This reluctance would
increase exponentially if he or she knew their struggle could be a
matter of public record.

It has become increasingly apparent over the last few decades that
drug addiction is not a crime. It is a disease, something to be
diagnosed, treated, and cured. An increasingly innovative and
progressive approach to drug-related crime in Rhode Island and across
America has made the drug courts the first step on the road to
recovery. If the Ocean State is truly serious about treating drug
addiction as a disease then the addict must be afforded the same level
of protection and confidentiality as any other patient seeking
treatment for an ailment. The federal government has acknowledged this
distinction and created confidentiality laws accordingly.

The drug court acts in many ways as a guiding hand through drug
treatment and recovery. The public in general (and the press in
particular), therefore, has no greater right to witness these
proceedings than they do to enter an examination room with a person
going for his or her yearly check-up.

In the end, however, the success of this experiment will be solely
determined by the willingness of addicts to participate and the extent
to which they choose to do so. Guaranteeing confidentiality is a
meaningful way of assuring eager participation and, subsequently,
resounding success.