Privilege and confidentiality in 12-step self-help programs: Believing the promises could be hazardous to an addict's freedom

Journal of Legal Medicine

Volumn 26, Issue 4, 2005, Pages 435-474

  Coleman, Phyllis ^a  

^a NOVA SOUTHEASTERN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ALCOHOLISM; COMPULSION; CONFIDENTIALITY; COUNSELING; DECISION MAKING; DOCTOR PATIENT RELATION; DRUG DEPENDENCE; FINANCIAL MANAGEMENT; GOVERNMENT REGULATION; GROUP THERAPY; HEALTH CARE COST; HEALTH PROGRAM; HUMAN; INFORMED CONSENT; LAW; MEDICOLEGAL ASPECT; PATIENT REFERRAL; PATIENT RIGHT; PATIENT SATISFACTION; PHYSICIAN ATTITUDE; REVIEW; SELF HELP;

LEGAL APPROACH; MENTAL HEALTH THERAPIES;

CONFIDENTIALITY; DUTY TO WARN; HUMANS; INFORMED CONSENT; SELF-HELP GROUPS; SUBSTANCE-RELATED DISORDERS; UNITED STATES;

EID: 28644432486     PISSN: 01947648     EISSN: 1521057X     Source Type: Journal    
DOI: 10.1080/01947640500364713     Document Type: Review

References (331)

1. Although some licensed treatment programs also adopt a 12-step approach, unless otherwise noted, this article uses the term to refer to self-help groups. See infra notes 93-113.
2. See infra notes 139-222 and accompanying text.
3. See generally Iris M. Del Toro et al., Chemically Dependent Patients in Recovery: Roles for the Family Physician, 53 AM. FAM. PHYSICIAN 1667, 1672 (1996) (suggesting that involvement in 12-step programs "has been identified as a predicator of positive outcome" and that participation in such programs by the attendee's treating physician "can significantly enhance the patient's sense of trust and his or her feeling of being understood");
4. see also Keith Humphreys et al., A Comparative Evaluation of Substance Abuse Treatment: V. Substance Abuse Treatment Can Enhance the Effectiveness of Self-Help Groups, 23 ALCOHOLISM: CLINICAL EXPERIMENTAL RES. 558, 562 (1999) [hereinafter Comparative Evaluation] (concluding that "fostering similarities between the treatment program and self-help environments may facilitate the transition" into 12-step programs);
5. Research Refines Alcoholism Treatment Options, 24 ALCOHOL RES. & HEALTH 53, 57 (2000) ("Higher levels of [Alcoholics Anonymous] attendance during and following professional treatment are consistently associated with better outcomes");
6. Harvey A. Siegel et al., Abstinence Trajectories Among Treated Crack Cocaine Users, 27 ADDICTIVE BEHAVIORS 437, 438 (2002) ("Drug abuse treatment clients who attended . . . Twelve Step programs such as Alcoholics Anonymous . . . were more likely to maintain abstinence than non-attenders.");
7. Christine Timko et al., Long-Term Outcomes of Alcohol Use Disorders: Comparing Untreated Individuals with Those in Alcoholics Anonymous and Formal Treatment, 61 J. STUD. ON ALCOHOL 529, 539 (2000) (concluding that patients receiving formal treatment and participating in Alcoholics Anonymous were likely to continue to improve on drinking outcomes, including abstinence; infra note 22.
8. But see Roger D. Weiss et al., Predictors of Self-Help Group Attendance in Cocaine Dependent Patients, 61 J. STUD. ON ALCOHOL 714, 714 (2000) (noting some studies have suggested self-help groups "are neither beneficial nor attractive to all those with substance-related problems").
9. Howard Roback et al., Effects of Professional Affiliation on Group Therapists' Confidentiality Attitudes and Behaviors, 21 BULL. AM. ACAD. PSYCHIATRY & L. 147, 152 (1993) (stating that "in not informing patients of exceptions to confidentiality, [doctors] are acting unethically and placing themselves at legal risk if a patient experiences injury because of any unauthorized disclosure"); see infra notes 223-65 and accompanying text.
10. Jordi Cami & Magi Farre, Drug Addiction, 349 N. ENG. J. MED. 975, 975 (Sept. 2003). Although the authors are discussing addictive drugs such as opioids and amphetamines, the definition of "addiction" also applies when the "drug" is alcohol.
11. David J. Mersy, Recognition of Alcohol and Substance Abuse, 67 AM. FAM. PHYSICAN 1529, 1529 (2003). Addiction should be distinguished from problem use where an individual may have an undiagnosed medical or social disorder but has not "experienced a major loss of control." Id.
12. DAVID BARTON, BENJAMIN RUSH: SIGNER OF THE DECLARATION OF INDEPENDENCE 147 (1999).
13. Steve Perlstein, Several in Congress, One Governor: Physician-Politicians Often Travel Rocky Road, 37 INTERNAL MED. NEWS 8, 8 (Mar. 1, 2004), available at 2004 WLNR 5828115.
14. BARTON, supra note 7, at 150; see also NATHAN G. GOODMAN, BENJAMIN RUSH: PHYSICIAN and CITIZEN (1934) (describing Benjamin Rush's fascinating life and varied careers including being (1) a patriot who was one of the signers of the Declaration of Independence, (2) a reformer and philosopher, and (3) the first American psychiatrist);
15. Thomas J. Reed, The Futile Fifth Step: Compulsory Disclosure of Confidential Communications Among Alcoholics Anonymous Members, 70 ST. JOHN'S L. REV. 693, 701-14 (1996) (providing an interesting review of the early temperance movements and history of AA).
16. Myer J. "Michael" Cohen, The Impaired Lawyer, 12 EXPERIENCE 6, 7 (Winter 2002).
17. Mersy, supra note 6, at 1529. The World Health Organization adopted the idea that alcoholism is a medical problem in 1951. GARY L. FISHER & THOMAS C. HARRISON, SUBSTANCE ABUSE: INFORMATION FOR SCHOOL COUNSELORS, SOCIAL WORKERS, THERAPISTS, AND COUNSELORS 41 (2d ed. 2000).
18. But see Timothy Edwards, The Theory and Practice of Compulsory Drug Treatment in the Criminal Justice System: The Wisconsin Experiment, 2000 WIS. L. REV. 283, 316 n. 149 (suggesting that, "while the disease model of addiction is often attributed to AA, AA had little if anything to do with its development").
19. Cohen, supra note 10, at 7; see also ROBERT J. WALDINGER, FUNDAMENTALS OF PSYCHIATRY 312 (1986) (noting that, while the majority of clinicians conclude alcoholism is a "disease rather than a moral failing," this does not absolve addicts from responsibility for their drinking).
20. See Herbert Fingarette, The Perils of Powell: In Search of a Factual Foundation for the "Disease Concept of Alcoholism" 83 HARV. L. REV. 793 (1970). Professor Fingarette challenges the concept "that alcoholism is a 'disease' and that alcoholism, and the alcoholic's excessive drinking, are 'involuntary.'" Id. at 797. He acknowledges that Alcoholics Anonymous believes alcoholism is a disease but explains even they do not claim drinking is involuntary. "On the contrary, the entire approach in Alcoholics Anonymous is to enlist the voluntary cooperation of the alcoholic." Id. at 807 n.64; see also FISHER & HARRISON, supra note 11, at 41-46 (providing an interesting discussion of the disease concept of addiction as well as criticisms of the theory).
21. See generally David J. Hanson, Historical Overview of Alcohol Abuse, in PREVENTION AND SOCIETAL IMPACT OF DRUG AND ALCOHOL ABUSE 31 (Robert T. Ammerman et al. eds., 1999) [hereinafter PREVENTION AND SOCIETAL IMPACT] (detailing how the definition of alcohol abuse has changed over time and presenting contrasting approaches to thinking about and preventing abuse);
22. J. Bryan Page, Historical Overview of Other Abusable Drugs, in PREVENTION and SOCIETAL IMPACT, supra, at 47-63 (explaining distinctions among four widely used drugs and listing major drugs other than alcohol and how they become popular).
23. Margaret O'Rourke, Could You Become an Addict?, AUSTRALIAN, Nov. 29, 2003, at C13, available at 2003 WLNR 7001571.
24. For current worldwide figures, see United Nations' World Drug Report 2004 Presents In-Depth Look into Global Drug Trends, M2 PRESSWIRE, June 25, 2004;
25. see also, e.g., Sonja B. Starr, Note, Simple Fairness: Ending Discrimination in Health Insurance Coverage of Addiction Treatment, 111 YALE L. J. 2321, 2327-31 (2002) (discussing plethora of health, social, and economic costs of addiction).
26. DEP'T OF HEALTH & HUMAN SERVICES, RESULTS FROM THE 2002 NATIONAL SURVEY ON DRUG USE AND HEALTH: NATIONAL FINDINGS § 8.1, available at http://www.oas.samhsa.gov/nhsda/2k2nsduh/Results/2k2results.htm (last visited Oct. 12, 2005) [hereinafter 2002 NATIONAL SURVEY].
27. According to the Diagnostic and Statistical Manual IV (DSM-IV), "[t]he essential feature of Substance Dependence is a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues use of the substance despite significant substance-related problems. There is a pattern of repeated self-administration that can result in tolerance, withdrawal, and compulsive drug-taking behavior." AM. PSYCHIATRIC ASS'N, DIAGNOSTIC & STATISTICAL MANUAL IV-TR 192 (4th ed. 2000). This diagnosis can apply to "every class of substances except caffeine." Id. Although the World Health Organization and American Psychiatric Association currently refer to "substance dependence," commentators continue to use "addiction" arguing it appears to focus more on the "behavioral connotation of the term and is less likely to be confused with physical dependence." Cami & Farre, supra note 5, at 975. The distinction is only semantic as there is general agreement about the criteria for the condition.
28. "The essential feature of Substance Abuse is a maladaptive pattern of substance use manifested by recurrent and significant adverse consequences related to the repeated use of substances." DSM-IV, supra note 18, at 198. To meet the criteria, "the substance-related problem must have occurred repeatedly during the same 12-month period or been persistent. There may be repeated failure to fulfill major role obligations, repeated use in situations in which it is physically hazardous, multiple legal problems, and recurrent social and interpersonal problems." Id.
29. See National Council on Alcoholism and Drug Dependence, Alcoholism and Drug Dependence Are America's Number One Health Problem, at http://www.ncadd. org/facts/numberoneprob.html (compiled June 2002) [hereinafter Alcoholism and Drug Dependence]. Heavy drinking also plays a part in heart disease, cancer, and strokes - the top three illnesses that kill. Id.
30. Roger Doyle, Deaths Due to Alcohol, SCI. AM., Dec. 1996, at 31, 31. Fifteen percent of the health care resources in the United States are associated with alcohol abuse.
31. Patrick G. O'Connor & Richard S. Schottenfeld, Patients with Alcohol Problems, 338 N. ENG. J. MED. 592, 592 (1998). The authors lament that "little research" exists but point to "some evidence" that Alcoholics Anonymous is cost effective. In fact, one study concluded treatment costs were 45% lower over three years for AA participants than outpatients and the "outcomes were similar." Id. at 597. In another study, over a two-year period, costs per patient were approximately $1,200 less for those in AA. Inpatient treatment had the best outcomes and was eventually required for 63% of AA members. Id.
32. CONSTANCE MORGAN ET AL., SCHNEIDER INST. FOR HEALTH POLICY, SUBSTANCE ABUSE: THE NATION'S NUMBER ONE HEALTH PROBLEM 50 (2001). Drinking and driving accounts for 24% of alcohol-related deaths.
33. Carol P. Waldhauser, Identifying Addiction, 18 GPSOLO 22, 23 (July/Aug. 2001).
34. Mary H. Cooper, Combating Alcohol and Tobacco Addiction, in DRUGS, SOCIETY, and BEHAVIOR 29, 29 (Hugh T. Wilson ed., 16th ed. 2001).
35. HORGAN ET AL., supra note 22, at 54 (noting reported figures frequently exclude "AIDS among injecting drug users, hepatitis and tuberculosis, and . . . other indirect causes of death, such as homicides, falls and motor vehicle crashes").
36. The disparities are at least partly attributable to the fact that calculations include consideration of different factors and some data are based on self-reports. J. David Hawkins et al., Preventing Substance Abuse, 19 CRIME & JUST. 343, 361-62 (1995). Nevertheless, researchers and commentators agree substance abuse is a significant and costly problem present in all societal demographics. See 2002 NATIONAL SURVEY, supra note 17;
37. Ann A. Abbott, Meeting the Challenges of Substance Misuse: Making Inroads One Step at a Time, 28 HEALTH & SOC. WORK 83, 83-84 (2003);
38. see also Maryland Study Reveals Increase in Narcotic-Overdose Deaths, 15 ALCOHOLISM & DRUG ABUSE WK. 1, 1 (Jan. 20, 2003), available at 2003 WLNR 2875904 (discussing overdose rates across gender and racial barriers). Teenage drug and alcohol use seems to be declining but children are experimenting at younger ages and studies show the earlier they begin the more likely they are to have substance abuse problems as adults.
39. Report Shows Substance Abuse as Number One Health Concern, NCADI REPORTER, Mar. 9, 2001, at http://www.health.org/newsroom/rep/161.aspx (last visited May 22, 2005).
40. One of the primary studies dates back to 1992. At that time "[t]he economic cost to society from alcohol and drug abuse was an estimated $246 billion." NAT'L INST. ON DRUG ABUSE, THE ECONOMIC COSTS OF ALCOHOL AND DRUG ABUSE IN THE UNITED STATES - 1992, § 1.1, at http://www.nida.nih.gov/EconomicCosts/Chapter1.html (last updated Feb. 9, 2005).
41. Dorothy P. Rice, Economic Costs of Substance Abuse, 1995, 111 PROCEEDINGS OF ASS'N OF AM. PHYSICIANS 119, 121 (1999).
42. Dorothy P. Rice, Economic Costs of Substance Abuse, 1995, 111 PROCEEDINGS OF ASS'N OF AM. PHYSICIANS 119, (1999). Id.
43. THE NATIONAL DRUG CONTROL STRATEGY: 1997, ch. 2, at http://www.ncjrs.org/ htm/chapter2.htm#text25 (last visited May 22, 2005).
44. Abbott, supra note 25, at 84.
45. Alcoholism and Drug Dependence, supra note 20.
46. HORGAN ET AL., supra note 22, at 108.
47. Michael T. French et al., Estimating the Dollar Value of Health Outcomes from Drug-Abuse Interventions, 34 MED. CARE 890, 891-93 (1996) (noting drug abusers "suffer from a host of medical problems" but treatment and other interventions can help, "leading to health status improvements . . . and reduced social costs").
48. NARCANON, DRUG ADDICTION FACTS, at http://www.drugaddictiontreatment. info/drug-addiction-facts.htm (last visited May 23, 2005).
49. Comparative Evaluation, supra note 3, at 558.
50. Comparative Evaluation Id. The authors suggest that, based on this shift, and the "growing body of evidence that both 12-Step self-help groups and professional interventions that foster 12-Step group involvement are effective at reducing substance abuse," the "typical conceptualization" should be reversed. Instead the question asked should be: "Can treatment enhance the effectiveness of self-help groups?" Id. Both answers appear to be yes. See infra note 109 and accompanying text.
51. ROBERT G. MEYER ET AL., LAW FOR THE PSYCHOTHERAPIST 51 (1988).
52. See GROUP FOR THE ADVANCEMENT OF PSYCHIATRY, REPORT No. 45: CONFIDENTIALITY AND PRIVILEGED COMMUNICATION IN THE PRACTICE OF PSYCHIATRY 89, 92 (June 1960) (noting a "wide agreement that confidentiality is a sine qua non for successful psychiatric treatment").
53. See, e.g., AM. PSYCHIATRIC ASS'N, FACT SHEET: CONFIDENTIALITY (Am. Psychiatric Ass'n, Washington, D.C.), Mar. 1998, at 1;
54. Paul S. Appelbaum, A "Health Information Infrastructure" and the Threat to Confidentiality of Health Records, 49 PSYCHIATRIC SERV. 27, 27 (1998);
55. Howard B. Roback et al., Guarding Confidentiality in Clinical Groups: The Therapist's Dilemma, 42 INT'L J. GROUP PSYCHOTHERAPY 81, 81 (1992) [hereinafter Guarding Confidentiality] (stating that clients who perceive that their secrets are safe with their therapists are more likely to disclose personal information in the therapeutic setting).
56. DAVID A. ELDER, Breaches of Fiduciary Duties and Duties of Confidentiality, in PRIVACY TORTS § 5:2, at 5-6 to 5-12 (2002);
57. see also, e.g., Judy E. Zelin, Annotation, Physician's Tort Liability for Unauthorized Disclosure of Confidential Information About Patient, 48 A.L.R.4TH 668, § 2 (1986) (noting damages may be recovered based on (1) invasion of privacy, (2) breach of the physician-patient confidential relationship, (3) violation of a statute, or (4) malpractice).
58. Ethics codes establish "a common set of standards that define norms of behavior for professionals within a domain or discipline, thus, safeguarding both the integrity as well as the reputation of the discipline." Merry Bullock & Sangeeta Panicker, Ethics for All: Differences Across Scientific Society Codes, 9 SCI. & ENG'G ETHICS 159, 164 (2003).
59. AM. MED. ASS'N, CODE OF MEDICAL ETHICS xiv (2002), available at http://www.ama-assn.org/ama/pub/category/2512.html (last visited May 22, 2005);
60. AM. PSYCHIATRIC ASS'N, PRINCIPLES OF MEDICAL ETHICS WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY § 4 (2001 ed.), available at http://www.psych.org/psych_pract/ethics/medicalethics2001_42001.cfm (last visited May 22, 2005). Physicians have followed the Hippocratic Oath since the fourth century B.C. There are variations, but the ancient Oaths contained language such as: "Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret."
61. N.S. Gill, Hippocratic Oath Online, at http://ancienthistory.about.com/ library/bl/bl_hippocratic_oath.htm (last visited May 22, 2005) (on file with the Journal of Legal Medicine). There are modernized versions of the Oath. All include the duty to maintain confidences.
62. See, e.g., Louis Lasagna, Hippocratic Oath - Modern Version (1964), at http://www.pbs.org/wgbh/nova/doctors/oath_modern.html (updated Mar. 2001) (on file with the Journal of Legal Medicine) (stating "I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know"). Although the Hippocratic Oath is the "most well known and honored formulation of moral standards for medical practice, it is but one of many attempts to formalize certain principles of conduct for the physician."
63. John P. Dolan, Changing Trends in Medical Ethics: Codes and Oaths, 74 J.S.C. MED. ASS'N 182, 183 (1978). Professor Dolan describes the evolution of medical ethics and codes and states, although "the notion of confidentiality has been retained in the more recently devised codes, its significance often seems irrelevant" in light of the current "team approach" to treating sick people and other new practice methods. Id. at 184. He also suggests, when physicians suspect they might have to violate confidences, they should warn their patients in advance. Id.
64. ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT 2002 § 4.05(b) (2002), available at apa.org/ethics/code2002.html (last visited May 22, 2005).
65. CODE OF ETHICS OF THE NATIONAL ASSOCIATION OF SOCIAL WORKERS § 107 (1999), available at http://www.naswdc.org/pubs/code/code.asp (last visited May 22, 2005).
66. AM. GROUP PSYCHOTHERAPY ASS'N, GUIDELINES OF GROUP PSYCHOTHERAPY PRACTICE § 2, reprinted in RONALD W. TOSELAND & ROBERT F. RIVAS, An INTRODUCTION TO GROUP WORK PRACTICE app. Al, at 487 (4th ed. 2001).
67. NAADAC, THE ASSOCIATION FOR ADDICTION PROFESSIONALS, ETHICAL STANDARDS FOR COUNSELORS BY THE NAADAC, Principle 8, available at http://naadac.org/ documents/display.php?DocumentID=11 (last visited Oct. 11, 2005).
68. Ellen W. Grabois, The Liability of Psychotherapists for Breach of Confidentiality, 12 J.L. & HEALTH 39, 53-60 (1998) (discussing the development of confidentiality between psychotherapist and patient).
69. Typical exceptions to the obligation to keep confidences include situations in which a patient (1) consents (e.g., Mo. ANN. STAT. § 337.736 (West 2004)), (2) makes a credible threat against an identifiable victim (e.g., FLA. STAT. ch. 456.059 (2003)), (3) initiates legal action or makes a complaint against the professional (e.g., OR. REV. STAT. § 675.765(2) (2001)), (4) commits child abuse (e.g., ALASKA STAT. § 08.29.200 (Michie 2003)) or elder abuse (CAL. WELF. & INST. CODE § 15632(a) (West 2004)), or (5) makes the communication during a court-ordered examination (e.g., LA. CODE EVID. ANN. art. 510(B)(2)(f) (West 2001)); see also notes 79-92 and accompanying text.
70. See Runyon v. Smith, 749 A.2d 852 (N.J. 2000) (noting psychologist could be liable for damages because she disclosed confidential information without being ordered to do so by a court); see also Michael L. Goodman et al., Damages for Medical Malpractice in Virginia, 33 U. RICH. L. REV. 919, 926-27 (1999) (discussing damages for malpractice based on breach of confidentiality); Grabois, supra note 47, at 63-70 (reviewing causes of action and damage awards against psychotherapists for breach of confidentiality).
71. See, e.g., NEV. REV. STAT. § 630.3065(1) (2003) (providing "[w]illful disclosure of a communication privileged pursuant to a statute or court order" constitutes grounds for "initiating disciplinary action or denying licensure" against physician); OR. REV. STAT. § 677.190(5) (2003) (stating board "may refuse to grant, or may suspend or revoke" physician's license for "[w]illfully or negligently divulging a professional secret without the written consent of the patient").
72. Estimates are that more than 100 varieties of 12-step programs exist. Marilyn Freimuth, Integrating Group Psychotherapy and 12-Step Work: A Collaborative Approach, 50 INT'L J. GROUP PSYCHOTHERAPY 297, 297 (2000). To name just a few, self-help groups have been created to address problems with alcohol, drugs, food, gambling, the Internet, mental illness, pornography, sex, shopping, and smoking. Relatives frequently are encouraged to join organizations that support family members of people with addictions. The Twelve Steps of Alcoholics Anonymous are: 1. We admitted we were powerless over alcohol - that our lives had become unmanageable. 2. Came to believe that a Power greater than ourselves could restore us to sanity. 3. Made a decision to turn our will and our lives over to the care of G-d as we understood Him. 4. Made a searching and fearless moral inventory of ourselves. 5. Admitted to G-d, to ourselves and to another human being the exact nature of our wrong-doings. 6. Were entirely ready to have G-d remove all these defects of character. 7. Humbly asked Him to remove our shortcomings. 8. Made a list of all persons we had harmed, and became willing to make amends to them all. 9. Made direct amends to such people wherever possible, except when to do so would injure them or others. 10. Continued to take personal inventory and when we were wrong promptly admitted it. 11. Sought through prayer and meditation to improve our conscious contact with G-d as we understood Him, praying only for knowledge of His will for us and the power to carry that out. 12. Having had a spiritual awakening as the result of these steps, we tried to carry this message to alcoholics and to practice these principles in all our affairs.
73. ALCOHOLICS ANONYMOUS WORLD SERVICES, INC., DR. BOB AND THE GOOD OLDTIMERS 346 (1980) [hereinafter DR. BOB].
74. Wayne Cross, Privileged Communications Between Participants in Group Psychotherapy, 1970 LAW & SOC. ORDER 191, 192-93.
75. See infra notes 94 & 254. Even lawyers' assistance groups provide such assurances. See, e.g., Cohen, supra note 10, at 9 (explaining the groups are "completely confidential"). But see Report of the AALS Special Committee on Problems of Substance Abuse in the Law Schools, 44 J. LEGAL EDUC. 35, 54-57 (1994) (noting, despite the importance of confidentiality in such programs, information about law students who seek counseling for substance abuse problems probably will be revealed when they apply for admission to the Bar).
76. See Howard B. Roback et al., Confidentiality in Group Psychotherapy: Empirical Findings and the Law, 46 INT'L J. GROUP PSYCHOTHERAPY 117, 122 (1996) [hereinafter Empirical Findings] (pointing out, even with "the seriousness of the threat" to confidentiality in group therapy, "surprisingly little research on how often violations occur" exists).
77. See infra notes 139-96 and accompanying text.
78. See, e.g., Gerald Corey et al., Ethical and Legal Issues in Group Counseling, 5 ETHICS & BEHAV. 161, 167 (1995);
79. see also Karen L. Ross, Revealing Confidential Secrets: Will It Save Our Children?, 28 SETON HALL L. REV. 963, 969 (1998) (stating "professional privileges, once recognized, protect the confidentiality of communications" ).
80. Grabois, supra note 47, at 55-56.
81. See, e.g., CAL. EVID. CODE § 1013 (West 2004); see also, e.g., BARBARA E. BERGMAN & NANCY HOLLANDER, 3 WHARTON'S CRIMINAL EVIDENCE § 11:48 (15th ed. 2003) (explaining a patient holds a privilege to prevent disclosure of a confidential communication if it was made in the course of a professional relationship with his physician);
82. R. Michael Cassidy, Sharing Sacred Secrets: Is It (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege?, 44 WM. & MARY L. REV. 1627, 1650 (2003) (stating, although states are split on who holds the clergy privilege, a substantial majority recognize the right belongs to the parishioner, analogous to the attorney-client and physician-patient privileges that "rest in the hands of the client and not the professional").
83. Pub. L. No. 93-595, 88 Stat. 1926 (codified as FED. R. EVID. 501 (1975));
84. see also Stacey A. Garber, Note, Cox v. Miller: The Clergy Privilege and Alcoholics Anonymous, 31 CAP. U.L. REV. 917, 920-21 (2003) (noting Congress adopted Rule 501 but rejected the proposal of the Federal Rules of Evidence Advisory Committee and the Supreme Court to enact federal evidentiary privileges).
85. FED. R. EVID. 501.
86. 518 U.S. 1, 9-10 (1996). Until Jaffee, it was not clear "whether the Federal Courts in developing the law of privileges should consider the proposed-but-rejected privileges as either persuasive or controlling." STEPHAN A. SALTZBURG ET AL., 2 FEDERAL RULES OF EVIDENCE MANUAL § 501.02[3], at 501-12 (8th ed. 2002). However, the majority "relied heavily" on the fact that the psychotherapist-patient privilege was recommended by the Advisory Committee and suggested there would be a presumption against privileges not originally proposed. Id.
87. Jaffee, 518 U.S. at 6.
88. Id. at 13.
89. For a discussion of other federal privileges and some that were rejected, see Raymond F. Miller, Comment, Creating Evidentiary Privileges: An Argument for the Judicial Approach, 31 CONN. L. REV. 771, 775-76 (1999).
90. In re Grand Jury Investigation, 918 F.2d 374, 377 (3d Cir. 1990); see infra notes 143-48 and accompanying text (discussion of applying clergy privilege to AA); see also Claudia L. Catalano, Annotation, Who Are "Clergy" or Like Within Privilege Attaching to Communications to Clergy Members or Spiritual Advisers, 101 A.L.R.5TH 619 (2002) (discussing varying state recognition of clerical obligations to maintain confidentiality).
91. See, e.g., Stacy Aronowitz, Note, Following the Psychotherapist-Patient Privilege Down the Bumpy-Road Paved by Jaffee v. Redmond, 1998 ANN. SURV. AM. L. 307, 313; see also Dillenbeck v. Hess, 536 N.E.2d 1126, 1129 (N.Y. 1989) (noting, under the common law, communications between physician and patient were not protected in legal proceedings "however unethical such disclosure may have been viewed when occurring outside the courtroom").
92. Jaffee, 518 U.S. at 9, n.8. The Court explained this phrase was well known "as early as the mid-18th century," when it was invoked during a House of Lords debate on a bill that attempted to grant immunity to witnesses who were going to testify against the first Earl of Orford. The legislation was "defeated soundly." Id.
93. See, e.g., George J. Barry, Note, Confidentiality in the Church of the Twelve Steps, 10 J.L. & POL'Y 433, 464 (2002).
94. See, e.g., Stidham v. Clark, 74 S.W.3d 719, 722 (Ky. 2002) (stating "the almost universally accepted rule that testimonial privileges are generally disfavored"). In determining whether there should be a privilege, lawmakers typically look to the four-part test created by Dean John Wigmore: (1) The communications must originate in a confidence that they will not be disclosed. (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. (3) The relation must be one which in the opinion of the community ought to be sedulously fostered. (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation. 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2285, at 527 (JOHN T. McNaughton rev. ed., 1961).
95. See, e.g., Robinson v. State, 875 So. 2d 230 (Miss. Ct. App. 2004); ROGER C. PARK, TRIAL OBJECTIONS HANDBOOK 2D § 5:24 (2003).
96. Cross, supra note 52, at 197-99.
97. See infra note 197-206 and accompanying text. Some states have even explicitly expanded the privilege to include statements made outside the therapy session. See, e.g., MASS. GEN. LAWS ANN. ch. 233, § 20B (West 2004) (providing privilege for "any communications, wherever made, between said patient and a psychotherapist").
98. See infra notes 207-22 and accompanying text.
99. See STEVEN GOODE ET AL., 1 TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF EVIDENCE § 510.2 (3d ed. Supp. 2005) (stating the privilege "seeks to enhance certain professional relationships which are designed to elicit . . . confidential disclosures," and including family members, medical staff, and "licensed professional counselors" as limited exceptions to the exclusivity of physician/patient confidentiality).
100. See, e.g., Skakel v. Benedict, No. CV 98357386S, 1999 WL 1077898 (Conn. Super. Ct. Nov. 10, 1999). Because co-patients in a residential treatment program were not "participating" in Michael Skakel's "diagnosis and treatment" for drug abuse "under the supervision of a psychiatrist," statements made to them did not fall within the state's psychotherapist-patient privilege. Id. at *3-*4. Furthermore, "communications between patients that bear no relationship to the principal purpose of the statutory privilege . . . are admissible." Id. at *4. Plaintiff's claim that his discussions were protected under federal law was also rejected, as "it is not the purpose of the regulations to prohibit disclosure of communications between patients, but rather between patients and program personnel." Id. at *6. However defendant's request to compel the facility's executive director to testify as to whether Skakel made any statements concerning the murder in which he was a suspect was denied. Id. at *7; cf. Redding v. Virginia Mason Med. Ctr., 878 P.2d 483, 485-86 (Wash. Ct. App. 1994) (holding that although communications to a psychologist in a joint session might ordinarily be privileged, former wife's statements about her alcohol use made during joint therapy sessions with ex-husband were not privileged as between the patients).
101. See Leila M. Foster, Group Psychotherapy: A Pool of Legal Witnesses?, 25 INT'L J. GROUP PSYCHOTHERAPY 50 (1975). Professor Foster hypothesizes the "nightmare" in which a psychotherapist is summoned to a deposition in the divorce of two group participants and discovers all other members also have been subpoenaed. Id. at 50. Conceding extending the privilege to protect these communications "is likely to cause some very difficult questions of definition," Foster nevertheless urges mental health professionals to seek such legislation. Id. at 53. There are not many appellate cases where testimony is sought from members in group therapy or self-help programs. In addition, 27% of therapists in one survey said they had been subpoenaed to testify against a patient in their group but none reported members were called to be witnesses against other participants.
102. Howard Roback et al., Confidentiality Dilemmas in Group Psychotherapy with Substance-Dependent Physicians, 153 AM. J. PSYCHIATRY 1250, 1255 (1996) [hereinafter Dilemmas in Group Psychotherapy]. Nevertheless, Professor Foster's concern is legitimate. Cf. State v. Lively, 921 P.2d 1035, 1046 (Wash. 1996) (suggesting in dicta that it would be "appropriate police procedure" for an informant to attend AA or NA meetings to "befriend[] a person previously targeted as a suspect" without acknowledging the troubling point that the individual also will hear confidential communications from others in the group).
103. See, e.g., ARK. CODE ANN. § 17-27-416(2), (3), (4) (Michie 2003) (providing exceptions to confidentiality, including when communication with alcoholism and drug abuse counselor "reveals the contemplation of a crime or a harmful act," statements indicate "the person was the victim of a crime," or "the individual is a defendant in either a civil or criminal action").
104. TEX. HEALTH & SAFETY CODE ANN. § 464.003(7) (Vernon 2004) (providing that chapter on facilities treating alcoholics and drug-dependent persons does not apply to: "(7) a 12-step or similar self-help chemical dependency recovery program: (A) that does not offer or purport to offer a chemical dependency treatment program; (B) that does not charge program participants; and (C) in which program participants may maintain anonymity").
105. Appelbaum, supra note 39, at 27.
106. For a historical overview of mandatory child abuse reporting statutes, see, e.g., Curt Richardson, Physician/Hospital Liability for Negligently Reporting Child Abuse, 23 J. LEGAL MED. 131, 133-35 (2002);
107. Christopher R. Pudelski, Comment, The Constitutional Fate of Mandatory Reporting Statutes and the Clergy-Communicant Privilege in a Post-Smith World, 98 Nw. U.L. REV. 703, 706-07 (2004). States also mandate reporting elder abuse. See, e.g., MONT. CODE ANN. § 52-3-811 (2003). A few states have less common reporting requirements. See, e.g., ARIZ. REV. STAT. ANN. § 28-3005(B) (West 2004) (permitting a physician or psychologist to report a patient who, in his or her opinion, has a "medical or psychological condition" that "could significantly impair the person's ability to safely operate a motor vehicle");
108. see also Andrew B. Black, Confidentiality and Driver Licensing Authorities, 22 MED. & L. 333 (2003);
109. June M. Sullivan, Physicians as Gatekeepers for Society: Confidentiality of Protected Health Information Versus Duty to Disclose At-Risk Drivers, 16 HEALTH L. 20 (2003).
110. See, e.g., FLA. STAT. ch. 39.204 (2003) (abrogating most privileges and requiring reporting of "known or suspected child abuse, abandonment or neglect"). In fact, courts consistently conclude the need to protect children who cannot protect themselves is more important than testimonial privileges. See, e.g., In re J.F., 37 P.3d 1227 (Wash. Ct. App. 2001) (noting child abuse mandatory reporting requirements trump the statutory counselor-patient privilege). But see Daymude v. State, 540 N.E.2d 1263 (Ind. Ct. App. 1989) (holding statute mandating child abuse reporting did not abrogate defendant's physician-patient privilege when the communications were made during court-ordered family therapy).
111. See, e.g., ALA. CODE § 26-14-10 (2003); ARTZ. REV. STAT. ANN. § 8-805(B) (West 2004); FLA. STAT. ch. 39.204 (2003). But see Robin Rosencrantz, Rejecting "Hear No Evil Speak No Evil": Expanding the Attorney's Role in Child Abuse Reporting, 8 Geo. J. LEGAL ETHICS 327, 345-47 (1995) (arguing against the attorneys' exception).
112. See, e.g., 325 ILL. COMP. STAT. 5/4 (2004); LA. REV. STAT. ANN. § 14:403(B) (West 2004); see also Shannon O'Malley, Note, At All Costs: Mandatory Child Abuse Reporting Statutes and the Clergy-Communicant Privilege, 21 REV. LITIG. 701 (2002). But see CONN. GEN. STAT. ANN. § 17a-101(b) (2004) (including "member of the clergy" in list of mandated reporters); Cassidy, supra note 58, at 1668 (noting 32 states currently include clergy as people who must report, although only 18 expressly list clerics and the other 14 fall within general catch-all provisions).
113. See, e.g., ALA. CODE § 26-14-13 (2003) (misdemeanor); ARK. CODE ANN. § 12-12-504 (Michie 2003) (class C misdemeanor); FLA. STAT. ch. 205 (2003) (first-degree misdemeanor); GA. CODE ANN. § 19-7-5(h) (2003) (misdemeanor); UTAH CODE ANN. § 62A-4a-411 (2003) (class B misdemeanor).
114. 551 P.2d 334 (Cal. 1976).
115. See, e.g., Peter F. Lake, Revisiting Tarasoff, 58 ALB. L. REV. 97, 98 (1994) (noting Tarasoff has been "'widely accepted (and rarely rejected)'" by judges and legislators);
116. Scott Rogge, Symposium, Liability of Psychiatrists Under New York Law for Failing to Identify Dangerous Patients, 20 PACE L. REV. 221, 224-25 (2000) (discussing wide adoption of "Tarasoff-type duties" and statutory and judicial modifications to the obligation). Nevertheless, some states have specifically rejected the Tarasoff duty to warn. See, e.g., Thapar v. Zezulka, 994 S.W.2d 635, 638 (Tex. 1999); Boynton v. Burglass, 590 So. 2d 446 (Fla. Ct. App. 1991). Physicians also are required to report gunshot wounds, see, e.g., Colo. Rev. Stat. Ann. § 12-36-135(1) (West 2003), and certain transmissible diseases, see, e.g., Fla. Stat. ch. 384.25(1) (2004).
117. Even the two Tarasoff decisions demonstrate a shift from a duty to warn to a duty to protect. Compare Tarasoff v. Regents of the Univ. of Cal., 529 P.2d 553 (Cal. 1974) with 551 P.2d 334 (Cal. 1976).
118. Fillmore Buckner & Marvin Firestone, "Where the Public Peril Begins": 25 Years After Tarasoff, 21 J. LEGAL MED. 187, 187-88 (2000) (analyzing Tarasoff, adoption and expansion of the theory in other jurisdictions, effects on clinical practice, and concluding, despite fears to the contrary, the duty to warn "did not mark the death of psychotherapy").
119. The therapist should divulge only as much information as is necessary to satisfy the legal duty. Thus, the threat might be reported, but not the underlying illness nor other communications between doctor and patient. See, e.g., Phyllis Coleman & Ronald A. Shellow, Warning a Patient's Intended Victim While Preserving Testimonial Privilege, 77 FLA. B.J. 20, 25-26 (July/Aug. 2003).
120. See, e.g., Daniel M. Buroker, The Psychotherapist-Patient Privilege and Post-Jaffee Confusion, 89 IOWA L. REV. 1373, 1388 (2004) (suggesting an exception to the psychotherapist-patient privilege only if: (1) the patient poses "a serious threat of harm to himself or others" and (2) the disclosure "will substantially advance the mental health interests of the patient");
121. Brian P. McKeever, Contours and Chaos: A Proposal for Courts to Apply the "Dangerous Patient" Exception to the Psychotherapist-Patient Privilege, 34 N.M. L. REV. 109, 110, 137-48 (2004) (explaining there is currently no standard to determine when, if ever, courts should apply a dangerous patient exception and providing "a workable and uniform framework" for such a test in criminal cases).
122. Commentators have discussed imposing a Tarasoff-like duty in other confidential relationships. See, e.g., Cassidy, supra note 58, at 1687-99 (clergy); Davalene Cooper, The Ethical Rules Lack Ethics: Tort Liability When a Lawyer Fails to Warn a Third Party of a Client's Threat to Cause Serious Physical Harm or Death, 36 IDAHO L. REV. 479, 481 (2000) (attorneys);
123. Jon B. Eisenberg & Jeremy B. Rosen, Commentary, Unmasking "Crack_Smoking_Jesus": Do Internet Service Providers Have a Tarasoff Duty to Divulge the Identity of a Subscriber Who Is Making Death Threats?, 25 HASTINGS COMM. & ENT. L.J. 683 (2003);
124. Michael Moffitt, Ten Ways to Get Sued: A Guide for Mediators, 8 HARV. NEGOT. L. REV. 81, 116 (2003);
125. John Ashby, Note, Employment References: Should Employers Have an Affirmative Duty to Report Employee Misconduct to Inquiring Prospective Employers?, 46 ARIZ. L. REV. 117, 148 (2004) (employers);
126. Melissa L. Gilbert, Comment, "Time-Out" for Student Threats?: Imposing a Duty to Protect on School Officials, 49 UCLA L. REV. 917 (2002).
127. Interestingly, there also is disagreement about the ability of professionals, including psychiatrists, to predict dangerousness. See Tarasoff, 551 P.2d at 344-48, 353-54 (Mosk, J., concurring and dissenting); Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993); Joanmarie Ilaria Davoli, Psychiatric Evidence on Trial, 56 SMU L. REV. 2191, 2200-01 (2003);
128. Bernard L. Diamond, The Psychiatric Prediction of Dangerousness, 123 U. PA. L. REV. 439 (1974);
129. Symposium, Parallels in Predicting Dangerousness - What Price Security?, 20 PACE L. REV. 315 (2000);
130. Terence W. Campbell, Challenging Psychologists and Psychiatrists as Expert Witnesses, 73 MICH. B.J. 68, 68 (Jan. 1994) (stating "accumulated research literature indicates that errors in predicting dangerousness range from 54% to 94%, averaging about 80%").
131. A 1989 national survey of private, hospital-based, and free-standing programs found that 95% based their treatment programs on the AA's 12-step approach. John N. Chappel & Robert L. DuPont, Twelve-Step and Mutual-Help Programs for Addictive Disorders, 22 ADDICTIVE DISORDERS 425, 428 (1999). Although the licensed programs that do not use this method are similar to the 12-step groups in some ways, they are different in that they (1) generally do not have a spiritual ideology, (2) are less structured and do not strive towards "'growth,'" (3) "emphasize 'learning and sharing coping skills'" and typically reject an admission of powerlessness, (4) are for a shorter period of time, (5) often have professional counselors, (6) focus more on the underlying cause of the problem, and (7) frequently are organized for lobbying.
132. Jessica G. Weiner, Comment, "And the Wisdom to Know the Difference": Confidentiality vs. Privilege in the Self-Help Setting, 144 U. PA. L. REV. 243, 257-59 (1995)
133. (quoting ALFRED H. KATZ, SELF-HELP IN AMERICA: A SOCIAL MOVEMENT PERSPECTIVE 1 (1993)). Some self-help groups also reject the 12 steps. For example, LifeRing Secular Recovery depends on peer-support, says it has "no Steps and no sponsors," and eschews the spiritual aspects of programs like AA.
134. See LIFERING SECULAR RECOVERY, CHEMICAL DEPENDENCY: NON-12-STEP GROUPS, available at http://www.helpdir.com/resources/chemical-dependency_other.htm (last visited May 23, 2005).
135. In fact, AA, NA, Al-Anon, and other self-help groups place cards on tables during meetings that say: "'What you see here, what you hear here, when you leave here, let it stay here.'" Reed, supra note 9, at 741. It has been suggested the closing for all sessions contain the following statement: "'The things you heard were spoken in confidence and should be treated as confidential. Keep them within the walls of this room and the confines of your mind.'" Id.
136. Keith Humphreys, Alcoholics Anonymous and 12-Step Alcoholism Treatment Programs, 16 RECENT DEV. IN ALCOHOLISM 149, 149-50 (2003).
137. Freimuth, supra note 51, at 299.
138. See infra notes 139, 141-49 and accompanying text.
139. Most states require that professionals demonstrate a certain level of education and competence and obtain a license to practice. See, e.g., Alison M. Sulentic, Crossing Borders: The Licensure of Interstate Telemedicine Practitioners, 25 J. LEGIS. 1, 7-8 (1999);
140. Christopher J. Caryl, Note, Malpractice and Other Legal Issues Preventing the Development of Telemedicine, 12 J.L. & HEALTH 173, 184 (1998). Some states permit therapists to practice without a license. For example, Minnesota expressly acknowledges that certain "mental health practitioners" will be "unlicensed" and requires that these counselors give clients specific information, including "a statement that client records and transactions with the practitioner are confidential." MINN. STAT. ANN. § 148.71(1)(k) (West 2004). Colorado also provides "unlicensed psychotherapist[s] shall not disclose . . . any confidential communications." COLO. REV. STAT. ANN. § 12-43-218 (2002).
141. Humphreys, supra note 95, at 150.
142. See supra notes 74-76 and accompanying text.
143. Chappel & DuPont, supra note 93, at 426 (quoting L.F. KURTZ, SELF HELP AND SUPPORT GROUPS: A HANDBOOK FOR PRACTITIONERS (1997)).
144. Marion K. Jacobs & Gerald Goodman, Psychology and Self-Help Groups: Predictions on a Partnership, 44 AM. PSYCHOLOGIST 536, 538 (1989).
145. Marion K. Jacobs & Gerald Goodman, Psychology and Self-Help Groups: Predictions on a Partnership, 44 AM. PSYCHOLOGIST 536, (1989). Id. The authors suggest social changes have created a fertile environment for the "impressive proliferation" of self-help groups. Among these changes are: (1) erosion of the family, reducing the traditional social support; (2) scientific advances leading to more people living longer and dealing with chronic medical conditions and the associated psychological problems; (3) diminished confidence in major institutions, including the medical establishment, coupled with civil and consumer rights movements that have given people a heightened sense of personal entitlement and empowerment; (4) scarcity of necessary mental health services; (5) serious concern about controlling medical costs; (6) greater acceptance of "social support and experientially gained knowledge as useful commodities in maintaining health." Id.
146. Michael T. French, Economic Evaluation of Alcohol Treatment Services, 15 RECENT DEV. IN ALCOHOLISM 209, 209 (2001) (pointing out the popularity of the "relatively new phenomenon" of managed care has raised many questions concerning "relative costs and benefits of alternative delivery systems");
147. see also Keith Humphreys & Rudolph Moos, Can Encouraging Substance Abuse Patients to Participate in Self-Help Groups Reduce Demand for Health Care? A Quasi-Experimental Study, 25 ALCOHOL CLINICAL & EXPERIMENTAL RES. 711, 711 (2001) (noting participation in free self-help groups might aid in "reconcil[ing] the frequently conflicting goals of cost containment and good outcomes").
148. Lee Ann Kaskutas et al., Social Networks as Mediators of the Effect of Alcoholics Anonymous, 97 ADDICTION 891, 891 (2002).
149. FISHER & HARRISON, supra note 11, at 1.
150. For an excellent description of AA written by a long-term member whose goal was to "give[ ] an inside view of Alcoholics Anonymous . . . to demystify it," see NAN ROBERSTON, GETTING BETTER: INSIDE ALCOHOLICS ANONYMOUS 17 (1988) [hereinafter GETTING BETTER];
151. see also ERNEST KURTZ, NOT-G-D: A HISTORY OF ALCOHOLICS ANONYMOUS (1979);
152. Michael G. Honeymar, Jr., Note, Alcoholics Anonymous as a Condition of Drunk Driving Probation: When Does It Amount to Establishment of Religion?, 97 COLUM. L. REV. 437, 440-43 (1997);
153. Christopher K. Smith, Note, State Compelled Spiritual Revelation: The First Amendment and Alcoholics Anonymous as a Condition of Drunk Driving Probation, 1 WM. & MARY BILL RTS. J. 299, 302-06 (1992). For biographies of the founders of AA and additional detailed histories of the program, see DR. BOB, supra note 51 (biography of Dr. Robert Holbrook Smith and the early years of AA)
154. and ALCOHOLICS ANONYMOUS WORLD SERVICES, INC., "PASS IT ON" (1984) (biography of Bill Wilson and the beginning of AA).
155. ALCOHOLICS ANONYMOUS, A.A. AT A GLANCE, at http://www. alcoholicsanonymous.org/default/en_about_aa.cfm?pageid=1 (last visited May 19, 2005). The growth is astonishing. The group was established on June 10, 1935 and reported only 100 members in 1939.
156. Kimberly B. Marlowe, From a Nucleus of Two, AA Has Grown to 1.8 Million, SEATTLE POST-INTELLIGENCER, June 29, 1990, at B10.
157. Robert Fiorentine & Maureen P. Hillhouse, Why Extensive Participation in Treatment and Twelve-Step Programs Is Associated with the Cessation of Addictive Behaviors: An Application of the Addicted-Self Model of Recovery, 22 J. ADDICTIVE DISEASES 35 (2003);
158. see also Harvey A. Siegel et al., Abstinence Trajectories Among Treated Crack Cocaine Users, 27 ADDICTIVE BEHAVIORS 437, 438 (2002). Conflicting evidence exists as to whether 12-step programs are as helpful for women and minorities as for European-American males, because "[f]or those who have traditionally suffered from societal powerlessness, as well as those who are in the process of developing their individuality and associated power, the 12-Step position that acceptance of powerless is vital may carry a perceived threat to independence and positive growth, and will thus be rejected."
159. Maureen P. Hillhouse & Robert Fiorentine, 12-Step Program Participation and Effectiveness: Do Gender and Ethnic Differences Exist?, 31 J. DRUG ISSUES 767, 768-69 (Summer 2001). Nevertheless a statistical analysis of a 24-month study of 356 people in Los Angeles outpatient alcohol and drug treatment programs found no distinctions in efficacy. Id. at 773-76.
160. Presumably, the same would be true for similar groups such as NA, Cocaine Anonymous, and Gamblers Anonymous.
161. Kaskutas, supra note 105, at 891.
162. Id. at 898-99.
163. Marsha Vannicelli et al., Group Therapy with Alcoholics: A Group Case Study, 34 INT'L J. GROUP PSYCHOTHERAPY 127, 139-40 (1984).
164. Licensed therapists may be psychiatrists, psychologists, social workers, nurses, crisis counselors, or other mental health practitioners. Statutes generally define the professionals covered by a privilege and the parameters of confidentiality for each.
165. GEORGE M. GAZDA ET AL., GROUP COUNSELING AND GROUP PSYCHOTHERAPY 14-15 (2001) (noting while some distinguish between group therapy and group psychotherapy, the terms generally are used interchangeably).
166. Id. at 14.
167. Cross, supra note 52, at 191-92; see also Max Rosenbaum & Kathleen M. Patterson, Group Psychotherapy in Historical Perspective, in COMPREHENSIVE TEXTBOOK OF PSYCHOTERAPY 173, 173-88 (Bruce Bongar & Larry E. Beutler eds., 1995) (noting "[t]he history of group psychotherapy is as old as the beginning of recorded time" and reviewing the work of the many people who "claim to have pioneered modern methods of group therapy").
168. Jane C. Gregory & Stephen C. McConnell, Ethical Issues with Psychotherapy in Group Contexts, 4 PSYCHOTHERAPY IN PRIVATE PRAC. 51, 51 (1986).
169. Cross, supra note 52, at 192.
170. Dilemmas in Group Psychotherapy, supra note 76, at 1250.
171. Rosenbaum & Patterson, supra note 117, at 192-96. Commentators have identified 10 factors considered fundamental to change. In addition to those listed in the text, they also point to (1) universality (demonstrating commonality of experiences), (2) altruism, (3) corrective recapitulation of the primary family, (4) developing socializing techniques, (5) imitative behavior, and (6) interpersonal learning. Id.
172. See supra note 42.
173. Cross, supra note 52, at 191 (quoting Jacob L. Moreno, Code of Ethics).
174. ELIZABETH REYNOLDS WELFEL, ETHICS IN COUNSELING AND PSYCHOTHERAPY 184-85 (2d ed. 2002) (opining "other group members cannot be held accountable if they violate confidentiality"); see also Cross, supra note 52, at 191-92 (discussing statements rejecting Moreno's conclusion that this "pledge" would be sufficient to prevent members from disclosing confidential communications in the face of a court order).
175. Paul S. Appelbaum & Alexander Greer, Confidentiality in Group Therapy, 44 HOSP. & COMM. PSYCHIATRY 311, 312 (1993). Unlike therapists who can be sued for malpractice or face disciplinary proceedings for breaching a confidence, "lay people have no a priori obligation to protect others' communications." Id. Some suggest that group members sign a contract promising to preserve confidentiality and agreeing to pay damages for failure to comply. However, there are no reported cases where such agreements have been used or challenged. Id.; cf. CAL. PENAL CODE § 1203.097(c)(1)(L) (West 2003) (mandating that a defendant who is ordered to attend a batterers' program as a condition of receiving probation in domestic violence cases sign a confidentiality statement); Gregory & McConnell, supra note 118, at 55-57 (suggesting a written contract including expectations information will not be disclosed be provided to group members during the screening process). However, even if judges or legislators attempted to require such agreements, it is not a good solution for self-help programs. People who seek anonymity are unlikely to sign a contract. Further, as local groups are autonomous, there would be no way to ensure that all chapters would even attempt to comply. See, e.g., Barry, supra note 68, at 451-52;
176. Nan Robertson, The Changing World of Alcoholics Anonymous, N. Y. TIMES, Feb. 21, 1988, at 40;
177. William R. Wineke, Local AA Society Turns 60: The Madison Downtown Group Celebrates a Milestone, WIS. ST. J., Sept. 26, 2003, at Bl. Moreover, while there might be a breach of contract action for inappropriate unconsented-to disclosures, such agreements would neither prevent a judge from compelling testimony nor provide immunity to a group member who fails to report information that falls within mandatory reporting statutes. In the absence of a contract action, a participant injured by a disclosure might try to sue the organization for negligent misrepresentation.
178. See, e.g., Michael L. Roberts, Fraud, in 6 ATLA'S LITIGATING TORT CASES § 68:31, at 68-74 (Roxanne Barton Conlin & Gregory S. Cusimano, eds., 2004).
179. See, e.g., In re Kevin, 1991 WL 126445, *4 (Conn. Super. Ct. July 1, 1991) (noting a prison inmate was voted out of his sexual offender group when other members thought he breached confidentiality).
180. Dilemmas in Group Psychotherapy, supra note 76, at 1250.
181. Alan I. Leshner, Science-Based Views of Drug Addiction and Its Treatment, in DRUGS SOCIETY, AND BEHAVIOR, supra note 23, at 42-43.
182. Janice L. Pringle et al., Managed Care and Substance Abuse Treatment, in PREVENTION AND SOCIETAL IMPACT, supra note 14, at 166-69 (reviewing the history of substance abuse treatment funding).
183. Id. at 166.
184. See supra notes 7-15 and accompanying text.
185. Pringle, supra note 129, at 168-69.
186. Cami & Ferre, supra note 5, at 976.
187. Pringle, supra note 129, at 169; see also John Mezochow et al., The Impact of Cost Containment on Alcohol and Drug Treatment, 38 HOSP. & COMM. PSYCHIATRY 506, 506 (1987) (noting, based on demand for alcoholism and drug abuse treatment, "numerous programs to meet ever-increasing needs" have been developed).
188. A. Thomas McLellan, Foreward to ADDICTION TREATMENT MATCHING XV, XV (David R. Gastfriend ed., 2003).
189. See, e.g., Research Refines Alcoholism Treatment Options, 24 ALCOHOL RES. & HEALTH 53, 53-59 (2000).
190. McLellan, supra note 135, at xv.
191. Michael T. French & Robert F. Martin, The Costs of Drug Abuse Consequences: A Summary of Research Findings, 13 J. SUBSTANCE ABUSE TREATMENT 453, 464 (1996).
192. 296 F.3d 89 (2d Cir 2002), cert. denied, 537 U.S. 1192 (2003).
193. DR. BOB, supra note 51.
194. Cox, 296 F.3d at 91. At least one good argument against preventing members from being able to divulge information learned as part of a self-help program exists. If people feel a duty to disclose, compelling them to remain silent might actually hurt their recovery. While extending the privilege may benefit "recovering criminals, whose unburdened consciences are free to focus on remaining sober," it could be "detrimental to recovering confidants," as they "might not be psychologically capable of maintaining a relationship requiring confidentiality." Barry, supra note 68, at 472-79. This claim was not raised in Cox, but it might have been, as the woman who reported the confession did so "on her psychiatrist's advice." Cox, 296 F.3d at 91.
195. Cox, 296 F.3d at 91-92.
196. Id. at 92 (quoting Cox v. Miller, 154 F. Supp. 2d 787, 792 (S.D.N.Y. 2001)).
197. Id.
198. Id. at 92-93 (quoting Cox, 154 F. Supp. 2d at 792).
199. Id. at 108.
200. Id.
201. Cox v. Miller, 537 U.S. 1192 (2003).
202. See, e.g., GETTING BETTER, supra note 107, at 17 (addressing the need to dispel the "biggest misconception" about AA, that "people think we're a bunch of religious nuts").
203. 342 N.W.2d 128 (Minn. 1984).
204. Id. at 130-31.
205. Id. at 134.
206. Id.
207. Justice Scott agreed the legislature intended to extend the privilege to communications made during group therapy. Nevertheless, in cases of child abuse, the state's twin interests in discovering the mistreatment and protecting the victim override the interest in encouraging the perpetrator to seek treatment. Id. at 134-35 (Scott, J., dissenting).
208. See supra notes 80-84 and accompanying text.
209. 250 Cal. Rptr. 25 (Cal. Ct. App. 1988).
210. Id. at 28 (quoting CAL. EVID. CODE § 1012 (West 1995)).
211. Id. at 28-29. Although there are circumstances under which the privilege would yield to a defendant's rights to confrontation and cross-examination, in this case defendant failed to establish "good cause" to do so. Id. at 29.
212. 637 A.2d 1162 (Me. 1994).
213. Id. at 1169.
214. Id. at 1168.
215. Id. at 1169 (citing 42 U.S.C. § 290dd-3 (2003)). Further, the federal statute "does not operate as a rule of evidentiary privilege or exclusion; rather it provides for a civil fine." Id.
216. Id.
217. Id.
218. Id. at 1169-70 (quoting ME. R. EVID. 503). Rule 503's "reasonable belief" language applies only to persons supposedly authorized to practice medicine. Boobar did not assert he believed DesIsles to be a physician. As to the religious privilege covered under Rule 505(a)(1), nothing in the record suggested Alcoholics Anonymous counselor DesIsles represented himself as a member of the clergy. Id.
219. Id. at 1170.
220. 652 A.2d 76 (Me. 1994).
221. Id. at 77-78.
222. Id. at 77.
223. 151 F.3d 650 (7th Cir. 1998).
224. Id. at 657-58.
225. Id. at 652.
226. Id. at 653.
227. Id.
228. Id. at 657.
229. Schwensow, 151 F.3d at 657.
230. M.T., A SPONSORSHIP GUIDE FOR 12-STEP PROGRAMS 125 (1998) (claiming to be "the only book available that discusses the issues and dilemmas that arise when anyone agrees to be a sponsor" and addressing the question "what to suggest to a sponsee with outstanding legal problems").
231. 933 S.W.2d 763, 768-69 (Tex. Crim. App. 1996).
232. Id. at 768.
233. Id.
234. 243 F.3d 1154, 1155 (9th Cir. 2001).
235. Id. at 1156.
236. In support of its conclusion that the psychotherapist-patient privilege should be extended to include EAP counselors, the Ninth Circuit noted that, in 1996, a majority of the United States Supreme Court recognized "the provision of mental health services has significantly changed in the last quarter century." Id. at 1158 (citing Jaffee v. Redmond, 518 U.S. 1, 16 n.16 (1996)). Arguably, this shift justifies including self-help participants, as they also perform a counseling function.
237. Oleszko, 243 F.3d at 1158.
238. Id. Acknowledging that a majority of states have not created a specific EAP counselor privilege, the Ninth Circuit pointed out that a few such laws do exist. Id. Moreover, other state and federal drug-related statutes demonstrate societal recognition of the benefits of EAPs. Id. at 1159 n.7.
239. Id. at 1157. The court based its conclusion on decisions that the privilege extend to unlicensed personnel such as rape crisis counselors and noted, in some programs, counselors receive training while others are supervised by licensed professionals. Id. at 1156; see also Merrily S. Archer, All Aboard the Bandwagon!: The Uncertain Scope of the Federal Psychotherapist-Client Privilege in the Aftermath of Jaffee v. Redmond, 52 WASH. U.J. URB. & CONTEMP. L. 355, 356-62 (1997).
240. Oleszko, 243 F.3d at 1157.
241. 128 F.R.D. 110 (D. Minn. 1989).
242. Id. at 114-15.
243. Id. at 114 (citing 5 U.S.C. § 552a(b)).
244. Id. (citing 38 U.S.C. § 3301(b)(2), since renumbered 38 U.S.C. § 5701(b)(2)).
245. Id. at 114-15; see also State ex rel. McGuire v. Cundiff, 9 S.W.3d 28, 29-30 (Mo. Ct. App. 1999) (holding when names and addresses of sexual offenders participating in therapy sessions with licensed counselor were not necessary in an underlying criminal case, the statutory privilege asserted by counselor should not be abrogated and subpoena compelling disclosure should be quashed).
246. 2002 WL 31426618, No. 14-01-00581-CR (Tex. Crim. App. Oct. 31, 2002).
247. TEX. RULE EVID. 509(b).
248. Shelby, 2002 WL 31426618, at *8.
249. Id. at *9.
250. See, e.g., KAN. STAT. ANN. § 65-5602 (2002); GA. R. EVID. § 23.3 (West 2002). In some states, the protection is not express. Instead, the statute provides that the presence of third parties who are necessary for treatment does not destroy the privilege. See, e.g., LA. CODE EVID. ANN. art. 510(A)(8)(a)(iii) (West 1995). These provisions may be interpreted to include group therapy. See, e.g., CLAIRE C. OBADE, PATIENT CARE DECISION-MAKING: A LEGAL GUIDE FOR PROVIDERS § 13:10 (2004) (explaining that in some jurisdictions the presence of a third person means information can be disclosed, but suggesting statements made as part of group or family therapy "will probably be treated as confidential" in states that protect communications).
251. TENN. CODE ANN. § 24-1-207(a) (2000).
252. Id.
253. D.C. CODE ANN. § 7-1201.02(b) (2003).
254. Id. § 7-1206.03.
255. Id. § 7-1207.01 (providing for amount of damages suffered plus reasonable attorneys' fees and costs for negligent violation and damages sustained, but not less than $1,000 plus costs and reasonable attorneys' fees for an intentional breach).
256. Id. § 7-1207.02(a) (providing for misdemeanor conviction for willful violation and (1)fine of not more than $1,000, or (2) imprisonment for 60 days or less, or (3) both).
257. Id. § 7-1208.04.
258. COLO. REV. STAT. ANN. § 13-90-107(1)(g) (West 2005).
259. Id.
260. 42 U.S.C.A. § 290dd-2 (West 2005) (formerly 42 U.S.C. § 209dd-3); id. § 290dd-2 (formerly 42 U.S.C. § 290ee-3).
261. Richard C. Boldt, A Study in Regulatory Method, Local Population Cultures, and Jurisprudential Voice: The Application of Federal Confidentiality Law to Project Head Start, 93 MICH. L. REV. 2325, 2330-34 (1995). Professor Boldt provides a brief history of the Acts, explains "[t]he broad definitions" in these laws "convey just how expansive the prohibition on disclosure is," and compares them to state legislation. Id. at 2331; see also Smalls v. Fallon, No. 92 CIV 8191, 1995 WL 5847, *4 (S.D.N.Y. Jan. 5, 1995) (reviewing the "tangled web of legislative history," making it "abundantly clear" the purpose was "to encourage government employees with substance or alcohol abuse problems to seek help without fear that they would be criminally prosecuted or fired").
262. See 42 C.F.R. § 2.13 (2005); 42 U.S.C.A. § 290dd-2(a) (West 2005). The penalty for violation of the statute is a fine. Id. § 290dd-2(f) (2004); see also Haycock v. Murphy, No. CIV.A. CV-00-022, 2000 WL 33677316 (Me. Super. Ct. Dec. 12, 2000) (discussing interaction of the statute and accompanying regulations).
263. 42 C.F.R. § 2.11(2) (2005).
264. The information may be divulged in the following situations: (1) consistent with regulations providing for safeguards and procedures, when there has been prior written consent by the person involved; (2) in the event of a "bona fide medical emergency," to health care personnel; (3) for scientific research, audits, or program evaluation but only without identifying the patient; and (4) if authorized by court order after proof of good cause and with appropriate safeguards against unauthorized disclosure. 42 U.S.C.A. § 290dd-2(b) (West 2005).
265. Id. § 290dd-2(c).
266. 42 C.F.R. § 2.65 (2005); see United States v. Hughes, 95 F. Supp. 2d 49, 56 (D. Mass. 2000) (citing United States v. Cresta, 825 F.2d 538, 551-52 (1st Cir. 1987)) (pointing out the statute and regulations include a "'strong presumption against disclosing records of this kind,'" and thus the crime must be "extremely serious").
267. Carr v. Allegheny Health, Educ. and Research Found., 933 F. Supp. 485, 490 (W.D. Pa. 1996).
268. See Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified as amended in scattered sections of 26, 29, and 42 U.S.C.); see also Tamela J. White & Charlotte A. Hoffman, The Privacy Standards Under the Health Insurance Portability and Accountability Act: A Practical Guide to Promote Order and Avoid Potential Chaos, 106 W. VA. L. REV. 709, 713-16 (2004);
269. Rebecca H. Bishop, Note, The Final Patient Privacy Regulations Under the Health Insurance Portability and Accountability Act - Promoting Patient Privacy or Public Confusion?, 37 GA. L. REV. 723, 735-37 (2003);
270. Misty C. Boyer, Comment, Texas Administrative Agencies Tackle Compliance with the Health Insurance Portability and Accountability Act's Privacy Rule, 5 TEX. TECH. J. TEX. ADMIN. L. 87, 88-91 (2004).
271. Sulentic, supra note 98, at 4-7 (discussing occupational licensing in health care).
272. See, e.g., William A. Carmell, Limiting Employee Assistance Program Liability, 38(5) PRAC. LAW. 21, 23-24 (July 1992);
273. Kathleen M. Maynard, The Psychotherapist-Patient Privilege: A Rational Approach to Defining "Psychotherapist," 45 CLEV. ST. L. REV. 405, 430 (1997).
274. See, e.g., ARIZ. REV. STAT. ANN. § 28-3005(A) (West 2005); N.D. CENT. CODE § 31-01-06.4 (2003).
275. See, e.g., LA. REV. STAT. ANN. § 37:3384 (2004); N.J. STAT. ANN. § 45:2D-11 (West 2005); S.C. CODE ANN. § 44-53-140 (Law. Co-op 2004).
276. OR. REV. STAT. § 40.230 (2005) (1981 Conference Committee Commentary paragraph (a)) (specifically excluding persons "consulted for a problem of drug or alcohol dependency" from the definition of psychotherapist for purposes of the psychotherapist-patient privilege); see State ex rel. Juvenile Dep't Lincoln County, 818 P.2d 1270, 1271-76 (Or. 1991) (providing a detailed review of the statute's legislative history).
277. TEX. RULE EVID. 509(b).
278. Id.; see also Peto v. State, 51 S.W.3d 326, 328 (Tex. Ct. App. 2001) (explaining the exception did not apply in this case because the psychiatrist had not been treating or examining defendant for alcohol or drug abuse).
279. See, e.g., Britt v. Taylor, 852 So. 2d 1128 (La. Ct. App. 2003); see also infra notes 233-65 and accompanying text.
280. Billebault v. Dibattiste, No. CIV.A. 96-6501, 1998 WL 255546, *4 (E.D. Pa. May 19, 1998).
281. Prooth v. Wallsh, 432 N.Y.S.2d 663, 665 (N.Y. Sup. Ct. 1980) (concluding a personal treating physician has the "responsibility to assure the welfare of his patient in all phases of his treatment").
282. See, e.g., Bottemiller ex rel. Bottemiller v. Gentle Dental Serv. Corp., Nos. 26828-8-II, 27051-0-II, 2002 WL 31895159, *11 (Wash. Ct. App. Dec. 31, 2002) (noting the majority of jurisdictions have decided referring doctors do not have a duty to obtain informed consent but a practitioner who "retains a degree of participation" might have a "responsibility to properly advise patient with respect to the treatment to be performed by the referred physician").
283. Referrals may be made by the patient's general practitioner, as an estimated 40% of medical and surgical patients have alcohol problems. O'Connor & Schottenfeld, supra note 21, at 592.
284. Appelbaum & Greer, supra note 125, at 312; see also Empirical Findings, supra note 54, at 121 (reviewing research demonstrating the number of therapists who say they talk about confidentiality far exceeds the number of members in their groups who report the issue was raised). In the groups where the question of confidentiality was not discussed, 90% of the members thought they could reveal other participants' statements. Id. Moreover, in another study of psychotherapists with an average of 15 years of experience in treating groups, only 32% said they told members about limits on confidentiality. Id.
285. See infra notes 259-65 and accompanying text.
286. This can be inferred from empirical evidence that "highly experienced and well-trained group psychotherapists rarely informed prospective patients of the limits of confidentiality." Dilemmas in Group Psychotherapy, supra note 76, at 1250. Some evidence supports the conclusion that a practitioner's training influences "beliefs and practices concerning confidentiality." However, researchers caution against attributing the disparity "exclusively to professional background" based on this study, because of the small sample size of respondents. Roback, supra note 4, at 151. Nevertheless, the results are interesting. Of the 100 subjects, fewer psychiatrists say they discuss confidentiality at an initial session (73%) than do either psychologists (81%) or social workers (91%). Id. at 148. The same is true about raising the issue at important junctures (times of increased self-disclosure), with fewer psychiatrists (27%) than either psychologists (47%) or social workers (56%) reinforcing previous confidentiality instructions. Id. at 148-49.
287. JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 7 (1984).
288. See generally Sheldon F. Kurtz, Essay, The Law of Informed Consent: From "Doctor Is Right" to "Patient Has Rights," 50 SYR. L. REV. 1243 (2000) (reviewing highlights of the evolution of informed consent and contrasting historical medical paternalism with a patient's current role in making his own medical decisions).
289. But see Roger B. Dworkin, Getting What We Should from Doctors: Rethinking Patient Autonomy and the Doctor-Patient Relationship, 13 HEALTH MATRIX 235, 235-37 (2003) (suggesting a more appropriate system than the current "triumph of patient autonomy over medical paternalism" would be "to reject the dominance of patient autonomy, abandon the exclusive, fiduciary nature of the doctor-patient relationship, and substitute a system in which professionals owe legally enforceable obligations to behave toward importantly affected individuals with respect for their well-being").
290. Some commentators trace the roots of the concept "that a patient has an inherent right to be informed concerning a prescribed medical treatment's benefits, risks, and reasonable alternatives" back "at least" to 1767. James A. Bulen, Jr., Complementary and Alternative Medicine: Ethical and Legal Aspects of Informed Consent to Treatment, 24 J. LEGAL MED. 331, 333 (2003). Others point out "it was not until 1980 ... that the AMA reluctantly acceded" to empowering patients by permitting them to make medical decisions for themselves after their physicians provide them with relevant information. Kurtz, supra note 232, at 1244-45.
291. See Robert Michael Ey, Causes of Action Against Physician for Failure to Obtain Patient's Informed Consent, in 5 CAUSES OF ACTION FIRST SERIES §§ 4-9 (2004);
292. Emmanuel O. Iheukwumere, Doctor, Are You Experienced? The Relevance of Disclosure of Physician Experience to a Valid Informed Consent, 18 J. CONTEMP. HEALTH L. & POL'Y 373, 375-80 (2002);
293. Derek Kroft, Informed Consent: A Comparative Analysis, 6 J. INT'L L. & PRAC. 457, 457-59 (1997);
294. Jon F. Merz, On a Decision-Making Paradigm of Medical Informed Consent, 14 J. LEGAL MED. 231, 232 (1993).
295. See, e.g., Jacobs v. Painter, 530 A.2d 231, 235-37 (Me. 1987).
296. See, e.g., Brigham v. De Buono, 644 N.Y.S.2d 413, 416 (N.Y. App. Div. 1996) (revoking physician's license for, among other deficiencies, failure of medical clinic's counselor to properly inform physician's patient of psychological impact of abortion).
297. Harrison v. United States, 284 F.3d 293, 298 (1st Cir. 2002). There are a variety of ways that courts explain this duty. However, they all basically impose the burden on a plaintiff to demonstrate the physician's breach of duty to disclose certain information caused plaintiff's injury. See, e.g., Mannina v. Borland, 869 So. 2d 946, 950 (La. Ct. App. 2004); see also Merz, supra note 234, at 232-33.
298. 317 P.2d 170 (Cal. Ct. App. 1957).
299. Id. at 181.
300. Id.
301. Id.
302. See Steven E. Pegalis & Harvey F. Wachsman, Informed Consent, in 1 AM. L. MED. MALPRACTICE § 4:1.3 (2004) (digesting cases applying both standards); Bulen, supra note 233, at 335-41 (explaining and analyzing the two standards);
303. Robert Gatter, Informed Consent Law and the Forgotten Duty of Physician Inquiry, 31 LOY. U. CHI. L.J. 557, 563-67 (2000) (same).
304. See, e.g., Sherwood v. Carter, 805 P.2d 452, 461 (Idaho 1991) (holding "the only logical and reasonable interpretation" of the statutory language stating "consent is valid if the disclosure of the pertinent facts ... would ordinarily be made and given under the same or similar circumstances, by a like physician or dentist of good standing practicing in the same community" creates "an objective, professional medical standard"); Culbertson v. Mernitz, 602 N.E.2d 98, 101-03 (Ind. 1992) (utilizing reasonably prudent physician standard and holding that to satisfy their burden, patients must obtain expert testimony to establish that accepted medical practice would require disclosure); Woolley v. Henderson, 418 A.2d 1123, 1128-30 (Me. 1980) (noting liability for nondisclosure must be based on fault which should be measured with reference to the reasonable professional in the same branch of medicine).
305. See, e.g., Adams v. El-Bash, 338 S.E.2d 381, 386 (W. Va. 1985) (adopting "the following objective test": where a physician fails to disclose risks "in accordance with the patient need standard of disclosure and the patient suffers an injury as a result ... a causal relationship ... may be shown if a reasonable person in the patient's circumstances would have refused to consent ... had the risks been properly disclosed"); Ketchup v. Howard, 543 S.E.2d 371, 378-79 (Ga. Ct. App. 2000) (contrasting the "professional medical standard" with the "prudent patient standard" and adopting the latter).
306. See, e.g., Howard v. Univ. of Med. and Dentistry of N.J., 800 A.2d 73, 78 (N.J. 2002).
307. Koapke v. Herfendal, 660 N.W.2d 206, 213 (N.D. 2003); see also, e.g., O'Neal v. Hammer, 953 P.2d 561, 566 (Haw. 1998) (noting, although "in most cases, the referring physician does not have the training or expertise to explain the inherent risks involved in the treatment or surgery that is to be performed by another physician," in some circumstances "the degree of participation or the retention of control by the referring physician may obligate the physician to secure informed consent from his or her patient"); Herrara v. Atlantic City Surgical Group, P.A., 649 A.2d 637, 641 (N.J. Super. Ct. Law Div. 1994) (quoting Skripek v. Bergamo, 491 A.2d 1336, 1343 (N.J. Super. Ct. App. Div. 1985)) (holding, where "[t]he referring doctor has neither the control, nor generally, the qualifications," and the specialist has control over the treatment and "theoretically is qualified to perform it," it is the specialist's duty to explain "sufficient information to enable the patient to 'evaluate knowledgeably the options available and the risks attendant upon each'").
308. Chappel & DuPont, supra note 93, at 429-30.
309. The physician should be suspicious of such guarantees because, despite a long tradition of confidentiality, even communications between physician and patient are not completely shielded. Further, many jurisdictions do not recognize a physician-patient privilege. It is unreasonable to suppose laws provide greater protections to statements between self-help group members than to those made to physicians.
310. 538 N.Y.S.2d 686 (N.Y. Sup. Ct. 1989).
311. Id. at 688.
312. Id. (emphasis added).
313. See, e.g., Koapke v. Herfendal, 660 N.W.2d 206, 212 (N.D. 2003).
314. 694 A.2d 648, 657 n.6 (Pa. Super. Ct. 1997).
315. Id. at 657 n.6.
316. Shkolnik v. Hosp. for Joint Diseases Orthopaedic Inst., 627 N.Y.S.2d 353, 355 (N.Y. Sup. Ct. App. Div. 1995).
317. See supra notes 53 & 94 and accompanying text.
318. See supra notes 37-39 and accompanying text.
319. Martin R. Studer, The Doctrine of Informed Consent: Protecting the Patient's Right to Make Informed Health Care Decisions, 48 MONT. L. REV. 85, 86 (1987) (tracing development of the informed consent doctrine and discussing the two standards of disclosure).
320. Arena v. Gingrich, 748 P.2d 547, 548 (Or. 1988) (quoting Arena v. Gingrich, 733 P.2d 75, 78 (Or. Ct. App. 1987)) (expressing agreement with the lower court that the "'objective test' of causation is 'anomalous' and 'makes no sense'").
321. See DR. BOB, supra note 51, at 346.
322. See, e.g., LEE S. KREINDLER, 15 N.Y. PRAC., NEW YORK LAW OF TORTS, PROFESSIONAL MALPRACTICE § 13:18 (2004).
323. Weiner, supra note 93, at 263.
324. Howard B. Roback & Mary Shelton, Effects of Confidentiality Limitations on the Psychotherapeutic Process, 4 J. PSYCHOTHERAPY PRAC. & RES. 185, 188 (1995).
325. Weiner, supra note 93, at 264.
326. See supra note 256 and accompanying text. Thus, the test here would be whether the reasonable patient in this situation would not have participated in the self-help group, or at least would not have made the statement(s) that, when repeated, caused the patient injury.
327. 811 P.2d 478 (Haw. Ct. App. 1991).
328. Id. at 482. When he continued to experience problems, Richard Keomaka consulted another doctor. Two years after the original surgery, a different physician performed an alternative procedure plaintiff claimed was available to the original surgeon. Id.
329. FISHER & HARRISON, supra note 11, at 155.
330. Commentators have argued for and against a self-help privilege. See, e.g., Bree Schonbrun, Comment, "In the Light of Reason and Experience": The Scope of Evidentiary Privilege in the Self-Help Setting: Alcoholics Anonymous Examined, 25 CARDOZO L. REV. 1203, 1236-43 (2004) (arguing a privilege for self-help groups is inconsistent with rationales and policies of such statutes); Weiner, supra note 93, at 296-306 (explaining why the privilege is necessary and responding to criticisms of such legislation).
331. This statute is loosely modeled after reporters' shield laws. See, e.g., FLA. STAT. ch. 90.5015 (2004). It also is similar in some ways to requirements under federal law to obtain a court order to acquire records to "initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient." See supra notes 212-13 and accompanying text.