Does Therapist-Patient Confidentiality and Privilege Extend to 12-Step Programs?
Twelve-step self-help groups have long preached the concepts of anonymity and confidentiality. In fact, most such groups, regardless of the addiction or issue being treated, end their meetings with the following (or a very similar) statement: “Anonymity is the spiritual foundation of our program. If we are to recover, we must feel free to say what is in our minds and hearts. Therefore, who you see here, what you hear here, when you leave here, let it stay here.”1
In many respects, as I will discuss below, this feels like an extension of a client’s right – when dealing with doctors, psychotherapists, lawyers, members of the clergy, and certain other professionals – to confidentiality and its courtroom counterpart, known as privilege.
Confidentiality and Privilege in the Therapeutic Setting
With psychotherapy, confidentiality has long been viewed as an essential element of successful treatment, mostly because without an assurance of confidentiality countless individuals would not be willing (or even able) to reveal embarrassing and potentially damaging information. As a result they would not seek and receive much needed help for their often very serious problems. Or, at best, their treatment would be less than effective because they would keep secrets and their therapist would be operating in the dark, so to speak.
In recognition of this, professional codes and legal statutes impose upon psychotherapists an ethical duty to hold client communications confidential, with a betrayal of this trust potentially leading to a loss or suspension of license plus civil liability. This confidentiality is absolute except in cases of imminent danger to a child (ongoing physical or sexual abuse, for instance), to the client (suicidal ideation, for instance), or other people (plans to commit a serious assault or murder, for instance). These exceptions do vary slightly from state to state depending on the laws currently in place, but as a general rule therapists have an obligation to report serious and imminent dangers to the proper governing body, with all else remaining confidential and privileged.
The US Supreme Court addressed the issue of psychotherapist-patient privilege at the federal level in 1996 with the landmark case Jaffee v. Redmond.2 There the court ruled that the ability to communicate freely in therapy without fear of disclosure is “the key to successful treatment.”3 This tenet is backed strongly by both the American Psychiatric Association and the American Psychological Association. The American Psychiatric Association, as far back as 1960, has viewed confidentiality as “a sine qua non for successful treatment.”4 Meanwhile, the American Psychological Association says, “Confidentiality is a respected part of psychology’s code of ethics. Psychologists understand that for people to feel comfortable talking about private and revealing information, they need a safe place to talk about anything they’d like, without fear of that information leaving the room.”5
Unfortunately, neither statutes nor legal precedents have, as yet, extended the confidentiality and privilege of the therapeutic setting to 12-step programs, even though the vast majority of addiction treatment specialists strongly recommend their addicted clients, as an essential part of the healing and recovery process, attend and participate in 12-step groups.
Therapists make this recommendation because recovering addicts almost always require external reinforcement and support from other recovering addicts if they want to permanently change their deeply rooted patterns of behavior, and 12-step meetings are where this best occurs. These programs help addicts understand their problems are not unique, which goes a long way toward reducing the shame that is associated with (and that triggers) their addiction. They are also an ideal place to confront the denial that is integral to all forms addiction. Moreover, addicts are able to learn which interventions and coping mechanisms work best based on other group members’ experiences.
12-Step Meetings: Members’ Expectation of Anonymity and Confidentiality
When addicts participate in 12-step meetings there is an expectation of confidentiality. And why would there not be, with “anonymous” included in the name of every single 12-step group, no matter the issue being addressed? It’s been this way right from the start, too. About this, Alcoholics Anonymous states:
Over the years, anonymity has proved one of the greatest gifts that A.A. offers the suffering alcoholic. Without it, many would never attend their first meeting. Although the stigma [of alcoholism] has lessened to some degree, most newcomers still find admission of their alcoholism so painful that it is possible only in a protected environment. Anonymity is essential for this atmosphere of trust and openness.6
Other 12-step programs have adopted the same philosophy. For instance, sex Addicts Anonymous states:
An SAA meeting is a safe place. It is a gathering of equals who keep confidences, refrain from judgment, and support one another through sharing their experience, strength, and hope.7
Elsewhere, Sex Addicts Anonymous says:
We strive to practice anonymity and confidentiality so that the meetings will be a safe place for each and every sex addict. We generally use only our first names in the group, to help ensure anonymity. Who we meet or what is said in a meeting is treated as confidential and is not discussed with non-group members.8
Simply stated, 12-step self-help groups are helpful for the same reason therapy is helpful: individuals are able to share their darkest secrets and then make significant life changes with the assistance, guidance, and support of other people without fear of public disclosure or reprisal. Without this protection, neither 12-step groups nor therapy would be anywhere near as effective. Moreover, many people would avoid seeking help altogether, and would therefore never even attempt to change their problem behaviors.
Legal Rulings on Confidentiality and Privilege with 12-Step Groups (and Similar Settings)
There are legal precedents, Cox v. Miller9 and State v. Andring10, that have ruled against extending confidentiality and privilege to 12-step groups. However, in both of these cases privilege would not have been given even to a therapist, as they involved either murder (Cox v. Miller) or ongoing child sexual abuse (State v. Andring).
Interestingly, Andring ruled that this type of communication would be privileged if it is “an integral and necessary part of a patient’s diagnosis and treatment.” A similar finding was reached in another case, Farrell v. Superior Cour11, where communication in group therapy settings was ruled confidential and privileged. Another case, State v. Boobar12, ruled the opposite, but in a case of murder, where, once again, confidentiality and privilege would not have been extended even to a therapist.
Another interesting and strongly related case is Oleszko v. State Compensation Insurance Fund13, where communications with Employee Assistance Program (EAP) counselors were protected because:
- EAP groups aid employees who otherwise would not get treatment.
- The availability of EAP Groups helps to reduce stigma associated with mental health problems, so more people seek care.
- EAP groups assist those who might not be able to afford traditional therapy.
- Even though EAP personnel do not actually provide psychotherapy, as part of the “mental health team” they have access to much of the same highly sensitive information that would be privileged if shared with a psychiatrist or certain other professionals.
For these reasons, Oleszko found that failing to extend confidentiality and privilege to EAP programs would “significantly undermine the psychotherapist-patient privilege.” That statement is highly relevant when discussing confidentiality and privilege with 12-step groups.
Like EAP counselors, 12-step participants are not usually licensed counselors. However, as with a traditional psychotherapeutic setting, these groups work best when they extract highly personal, emotionally painful, and often potentially embarrassing or damaging information – always under the guise of confidential communications, and always with the sole goal of helping a person in need. They also aid people who otherwise might not get assistance (usually because they can’t afford it). Moreover, because 12-step group members are often sent there by a licensed therapist, members can easily be considered part of the “mental health team.”
Arguments for Extending Therapeutic Confidentiality and Privilege to 12-Step Groups
For the following reasons, 12-step groups should (and quite possibly must) be included under the therapeutic umbrella of confidentiality and privilege:
- Very often, 12-step meetings are a direct extension of therapy, recommended as an adjunct to more formalized forms of treatment by a clinician or an addiction treatment facility. (Research consistently supports this methodology, showing that 12-step programs used in conjunction with traditional treatment options greatly increase an addict’s odds of lasting sobriety and a better life.) In some addiction recovery programs, 12-step participation is actually mandatory; if you’re not going to meetings, you can’t stay in the program. In this light, not extending therapeutic confidentiality and privilege to 12-step groups would make no sense.
- Similarly, 12-step meetings are often a direction extension of the confessional, medical consultations, and/or legal consultations, with a clergy member, doctor, or lawyer recommending 12-step recovery as a way of addressing personal problems. In this light, failing to extend clerical, medical, and legal confidentiality and privilege to 12-step groups would make no sense.
- For many people, 12-step meetings are the same thing as therapy. This is especially likely with lower-income and disenfranchised individuals. Essentially, these individuals realize they are struggling with an addiction or some other issue for which there is a 12-step group, they can’t afford traditional therapy, so they seek help in the only available low-cost setting. In this light, failing to grant confidentiality and privilege to 12-step groups presents a grave social danger. Without a thriving community of anonymous and confidential 12-step groups, useful help is not available to an already drastically underserved segment of our population.
- As discussed earlier, 12-step meetings are by nature confidential. Simply attending a 12-step meeting creates an implicit pact/contract of mutual anonymity and confidentiality. If we cannot fully trust each other in a setting like this – where we have come together to help one another solve our common problems – then we cannot trust each other in any setting. And without trust, we will forever struggle to heal.
Because 12-step recovery groups are such an essential part of the healing process – often recommended by a professional, other times utilized because a professional is not available or affordable – it is imperative that the legal system recognize and protect the anonymous and confidential nature of such groups (maintaining the same “imminent danger” exceptions we see elsewhere, of course). Without this protection, we risk a chilling effect on the communication, sharing, and trust between 12-step group members that is so vital to an addict’s healing and sobriety. We also risk driving people away from the help that they desperately need, for fear of being “outed” and experiencing consequences.
Unfortunately, as stated earlier, neither statutes nor legal precedents have, as yet, extended the confidentiality and privilege of the therapeutic setting to 12-step programs. As such, it is incumbent on therapists who send their clients into 12-step recovery as an adjunct to formalized treatment to contact the professional organizations to which they belong, requesting their legal/lobbying arm put forth legislation. (Suggested legislation can be found in the appendix of Phyllis Coleman’s article, Privilege and Confidentiality in 12-Step Self-Help Programs.)
- Sober recovery: Alcoholism drug addiction help and information. Retrieved July 05, 2017, from http://www.soberrecovery.com/forums/alcoholism-12-step-support/179285-what-you-hear-here-when-you-leave-here-let-stay-here-here-here-2.html.
- Jaffee v. Redmond (95-266), 518 U.S. 1 (1996).
- Remley, T. P., Herlihy, B., & Herlihy, S. B. (1997). The US Supreme Court decision in Jaffee v. Redmond: Implications for counselors. Journal of Counseling & Development, 75(3), 213-218.
- Group for the Advancement of Psychiatry, Report No. 45: Confidentiality and Privileged Communication in the Practice of Psychiatry 89, 92 (June 1960).
- American Psychology Association. Protecting your privacy: Understanding confidentiality. Retrieved July 05, 2017, from http://www.apa.org/helpcenter/confidentiality.aspx.
- Alcoholics Anonymous. Understanding Anonymity. Retrieved July 05, 2017, from http://www.soberrecovery.com/forums/alcoholism-12-step-support/179285-what-you-hear-here-when-you-leave-here-let-stay-here-here-here-2.html.
- Sex Addicts Anonymous. Group Guide: Handbook for SAA Groups. Retrieved July 05, 2017, from http://saa-recovery.org/Meetings/GroupGuide/SAA_Group_Guide.pdf.
- Sex Addicts Anonymous (2017). Sex Addicts Anonymous, 3rd Edition.
- 296 F.3d 89 (2d Cir. 2002), cert. denied, 537 U.S. 1192 (2003).
- 342 N.W.2d 128 (Minn. 1984).
- 250 Cal. Rptr. 25 (Cal. Ct. App. 1988).
- 637 A.2d. 1162 (Me. 1994).
- 243 F.3d 1154, 1155 (9th Cir. 2001).
- Fiorentine, R., & Hillhouse, M. P. (2003). 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. Journal of addictive diseases, 22(1), 35-55; Siegal, H. A., Li, L., & Rapp, R. C. (2002). Abstinence trajectories among treated crack cocaine users. Addictive Behaviors, 27(3), 437-449; Humphreys, K., Huebsch, P. D., Finney, J. W., & Moos, R. H. (1999). A Comparative Evaluation of Substance Abuse Treatment: V. Substance Abuse Treatment Can Enhance the Effectiveness of Self‐Help Groups. Alcoholism: Clinical and Experimental Research, 23(3), 558-563; among other studies.
- Coleman, P. (2005). Privilege and confidentiality in 12-step self-help programs: Believing the promises could be hazardous to an addict’s freedom. The Journal of Legal Medicine, 26(4), 435-474.
Weiss LCSW, R. (2017). Does Therapist-Patient Confidentiality and Privilege Extend to 12-Step Programs? . Psych Central. Retrieved on February 22, 2018, from https://blogs.psychcentral.com/blog/2017/07/does-therapist-patient-confidentiality-and-privilege-extend-to-12-step-programs%e2%80%a8/