Methadone Treatment in Narcotic Addiction. Chapter 6

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At stake in this litigation is the power of a local grand jury, intent on bringing before the bar of justice one suspect thought to have committed a crime involving one other person, to require a public official to act in a manner that jeopardizes and threatens irreparable damage to drug abuse treatment programs involving tens of thousands of patients throughout the country, for if the principle of absolute confidentiality is breached in New York, it will be virtually impossible to give addicts anywhere any meaningful assurance (65).

On June 7, 1972, Talmadge Berry was shot and killed in front of 1787 Amsterdam Avenue in New York City. Several days later a Police Department detective appeared at one of the NYC MMTP clinics, stated that he was investigating a homicide, and requested access to patient photographs to show to an alleged witness who believed she had seen the perpetrator being treated at the clinic on a prior occasion. After consulting me, the clinic refused. Approximately one week later, the Manhattan District Attorney served a subpoena duces tecum on the supervisor of the clinic involved, requiring that he appear before the Grand Jury and produce "photographs of all male Negro patients between the ages of 21 and 35 in the Methadone Maintenance Treatment Program."

At that time there were no Program guidelines to follow in responding to this unprecedented situation. The first decision which had to be made was whether to fight the subpoena or comply and produce the photographs. It was assumed that since this case involved murder, both the courts and the general public would be hostile to the Program's refusal to cooperate with the police. Furthermore, no Federal regulations then existed to interpret the laws governing confidentiality of addiction treatment records, or to support noncompliance. Finally, there had as yet been no court test of the general policy of the NYC MMTP to refuse disclosure of patient information without written consent, and it was feared that pursuing this particular case might prove not only futile, but decidedly counterproductive; a negative court ruling could serve as a precedent to vitiate the Program's confidentiality provisions in far less dramatic cases. Despite these apprehensions, there was a consensus among the administrative staff that the challenge should be resisted, and the City's Corporation Counsel, reluctantly, agreed to attempt to quash the subpoena.

Once this decision had been made, it became imperative to remove the responsibility from the clinic supervisor. It was successfully argued that only the Program Director had ultimate authority to release confidential patient records, and the District Attorney agreed to reissue the subpoena in my name (xxxii). Accordingly, on June 30, 1972, an identical subpoena demanding the production of the photographs was served on me.

In the "Memorandum of Law" submitted by the Corporation Counsel to the New York Supreme Court in support of its motion to quash the subpoena, the following arguments were made.

Strict confidentiality is critical to ensure the success of methadone maintenance programs. "If such confidentiality is not maintained, the trust of the patients will be lost and many will not remain in treatment.... Those who do continue in treatment will have lost the trust in the clinic staff which is indispensable to successful patient management" (67).

Reference was made to federal confidentiality regulations which had been proposed in the Federal Register on April 6, 1972: "Information that would identify the patient will be kept confidential pursuant to section 303 of the Public Health Service Act and will not be divulged in any civil, criminal, administrative or other proceedings conducted by Federal, State or local authorities" (68).

Disclosure of the subpoenaed photographs would violate State law governing medical treatment in general: "Unless the patient waives the privilege [of confidentiality], a person authorized to practice medicine ... shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity" (69). Since the photographs were considered by the Program to be indispensable to the safe and effective management of its patients, they fell into the category of information which is a prerequisite to treatment, and therefore were protected against disclosure.

In a last-minute effort to resolve the issue through negotiation, a meeting was convened on June 30, 1972, by the Regional Office of the Department of Health, Education, and Welfare (H.E.W.). In the presence of a representative of the Corporation Counsel, the Assistant District Attorney and myself, an H.E.W. attorney suggested the following "compromise": if the Program promptly produced the photographs, the District Attorney would agree to tear up the subpoena and, in the future, the District Attorney would demand Confidential information "only in particularly important cases." I did not feel that this proposal was satisfactory, and the court case proceeded.

The motion of the City to quash the subpoena was denied by the New York Supreme Court on July 14, 1972. At this point, indicating that it consid ered the case hopeless, the Corporation Counsel refused to support the NYC MMTP in further litigation. It was also made clear that there was no sympathy within the Corporation Counsel's office for the Program's position (xxxiii). Consequently, if efforts to withhold the records were to continue, it would be necessary to obtain outside legal counsel.

Although the City Charter ordinarily requires that City employees be represented in such proceedings by the Corporation Counsel, an exception is permitted in cases where an official is personally threatened with a conteinpt of court citation (73). My brother, Thomas Newman, a partner in the firm of Siff and Newman which specializes in appellate law, was willing to take over the litigation without compensation.

On Tuesday, July 25, 1972, the motion to quash the subpoena having been denied, I appeared before the Grand Jury and once again refused to comply with the demand to produce the photographs. Accompanied by my brother, who was now serving as my attorney, I was taken before Supreme Court Justice Sydney Fine and found in contempt of court; the judge ruled that "...for the said Contempt of Court, the said Robert Newman be committed to the custody of the Warden of the Civil Jail of the City of New York for a term of 30 days." In order to permit my counsel time to request a stay of sentence pending appeal, incarceration was delayed for two days.

Considerable outside support had been received for the Program's stance in the week prior to the contempt ruling. On Saturday evening, July 22, the Deputy Director of the Special Action Office for Drug Abuse Prevention (S.A.O.D.A.P.) had flown to New York from Washington and hand- delivered a letter signed by the S.A.0.D.A.P. General Counsel. The letter underscored the importance of assuring addicts that treatment records would be maintained in confidence: "Because a high proportion of heroin addicts are involved in a life style which puts them in fear of criminal prosecution, any effort to modify that life style through participation in a treatment program is bound to be compromised if the addict believes that such participation will generate records which increase the risks he already feels. Stated more positively, all the operators of treatment programs with whom we have talked believe that it is important for them to give assurance of confidentiality to persons entering treatment, and we share this view" (74).

On the same day I received a letter from the Steering Committee of the National Association of Methadone Program Directors, which stated: "The issue of confidentiality involved [in the current court case] bears directly and substantively on our ability to deliver effective services to drug dependent persons. The rupture of trust between patients and physicians which may result from this legal action will have serious and destructive effects on rehabilitation services not only in the City of New York, but also in major urban areas throughout the United States. The expectation of confidentiality is a necessary precondition for treatment, and we have noted that the concern of prospective patients in this regard is so great as to inhibit many of them from accepting services" (75). Additional letters of support were received from Dr. Vincent Dole of The Rockefeller University, from the Sub-committee on Confidentiality of the Health Data Committee of the New York City Comprehensive Health Planning Agency, and from the New York Civil Liberties Union.

Probably the most significant correspondence of all came from the Food and Drug Administration in response to the Program's request for an opinion regarding the relevance of the confidentiality regulations which were then still in the "proposed" state. On July 25, 1972, I received a telegram from the Assistant General Counsel of the F. D.A.: "After consultation with the President's Special Action Office for Drug Abuse Prevention and the National Institute of Mental Health, the Commissioner of Food and Drugs has concluded pursuant to Section 3 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 that the confidentiality provisions of the Federal Register Notice on Methadone published April 6, 1972, shall be effective immediately pending promulgation of final regulations in this matter" (76). In essence, although the Program had only requested an opinion regarding the intent of the government expressed in proposed regulations, the F.D. A. responded by implementing the relevant regulation.

Late in the afternoon of July 26, the day before the jail sentence was to begin, a stay was granted by the Appellate Court over the strenuous objection of the District Attorney. This afforded the Program's counsel time to prepare an appeal, and in the subsequent months, as word of the case spread, dozens of letters of support were received from across the country.

Oral argument before the New York Appellate Division took place in September, 1972. In its decision, announced on October 2, the Court upheld the subpoena but at the same time modified and restricted the conditions under which disclosure was ordered: "...that the witness view the photos under supervision of dependent Commissioner or someone designated by him, and that none of the pictures may be exhibited to the police or prosecutor except that one which she may identify as the person sought..." (77). Since this modification still rejected the principle of absolute confidentiality, I decided to pursue the case and appeal to the highest New York State court, the Court of Appeals. Some individuals previously in support of the Program's position did not agree with this decision, fearing that the case would ultimately be lost anyway, and that the "partial victory" gained in the Appellate Division would be jeopardized in the process.

A number of developments in late 1972, however, seemed to enhance the Program's chances of having the lower court ruling overturned. In response to a request submitted in October, the NYC MMTP received a special "Grant of Confidentiality" from the Director of the Bureau of Narcotics and Dangerous Drugs, acting for the United States Attorney General. The Grant, based on a provision of the 1970 Comprehensive Drug Abuse Prevention and Treatment Act, (xxxiv) read as follows:

... I hereby authorize you to withhold the names and other identifying characteristics of persons who are the subject of research conducted pursuant to and in conformity with this research project [the NYC MMTP]. You may not be compelled in any Federal, State or local civil, criminal, administrative, legislative or other proceeding to identify the subjects of such research (78).

In the same month, S.A.0.D.A.P. published regulations interpreting the relationship of the 1970 Act, which was the basis for the Grant of Confidentiality, to the Drug Abuse Office and Treatment Act of 1972, which provided that courts could authorize the release of confidential patient information after applying the "balancing test" (xxxv). If, as the District Attorney argued, the earlier statute was repealed by the 1972 law, then it would be necessary to conclude that "the Attorney General's 'Grant' of Confidentiality is a nullity" (80). According to S.A.O.D.A.P., however, the 1970 Act was not superseded: "Nothing in either the language or the legislative history of the provisions of the [1972] Act indicates any intent on the part of Congress to amend the provisions of the 1970 Act or to reduce the protection which can be afforded under them" (81). The same opinion was stated in the amicus curiae brief supporting the Program's position which was submitted by the Federal Government to the Court of Appeals.

The case was argued before the Court of Appeals on March 23, 1973. On May 31 the Court decided in favor of the Program, ruling that "...the order of the Appellate Division of the Supreme Court appealed from ... is reversed, . . . the adjudication of contempt vacated and the motion to quash the subpoena granted" (82). The decision was reached by a majority of four to three. In elaborating on its ruling, the Court stated that the critical factor had been its determination that the 1970 legislation was still in effect, and that consequently the Program's Grant of Confidentiality was valid and protected the NYC MMTP against forced disclosure. At the same time, the Court rejected the other arguments upon which the appeal was based, specifically the confidentiality afforded by State law to the patient-physician relationship.

The final chapter in this case did not come until January 21, 1974, 18 months after the proceedings began, when the United States Supreme Court denied the petition of the Manhattan District Attorney for a writ of certiorari (review of the decision). The vote of the Court was 7 to 2 to let stand the New York State Court of Appeals decision. The case was then closed, and the NYC MMTP had succeeded in maintaining confidentiality of its patients' records.

Initially, the Program had somewhat naively hoped that this legal victory would discourage further demands for confidential information. Actual experience proved otherwise, and subpoenas and other attempts to gain access to patient records continued unabated. In light of the precedent which was established, however, it has been consistently possible for the subpoenas to be quashed in the lower courts.

The difficulties associated with a case of this type go far beyond the legal arguments raised by the opposition. There is an almost irresistable temptation to justify yielding to the pressures which are created, and a limitless capacity for rationalization. This case, after all, involved a murder, so perhaps an exception to the usual Program policies would be warranted; the request was limited to some photographs and addresses, and the bulk of the patient records would be kept secret; adverse publicity could do far more harm to the Program than yielding in this one instance; chances were good that the witness would not be able to identify any of the photographs anyway; the general policy of preserving confidentiality was endangered, and it would be better to at least salvage some vestige of Program policy than risk total defeat; the case would detract from the many other obligations attendant to directing a huge, still expanding, treatment program; etc.

In retrospect, the single most indispensable element in the ultimate outcome of this case was the availability of competent and dedicated legal counsel, willing to contribute time and talent to achieve a highly significant victory against staggering odds. Had the defense of the Program's position been left to the City Corporation Counsel, the initial ruling by the lower court would never have been appealed, let alone reversed (xxxvi). Giving up without exhausting all legal recourse, simply because the chances of success were small, would have destroyed the program's credibility - and credibility, especially with patients and prospective patients, is, after all, what the struggle to maintain confidentiality is all about.

Notes

xxxi. See reference (64).

xxxii. The revised federal confidentiality regulations promulgated in July, 1975, incorporated the NYC MMTP recommendation in this regard: "...a single member of the program staff should be designated to process inquiries and requests for patient information..." (66). It is critical that a specified individual, preferably the director, be responsible for release of information to ensure that a program's responses will be consistent, and that the consequence of failing to comply with subpoenas and other requests falls squarely on the individual with ultimate responsibility for the program's operation.

xxxiii. I later learned that Corporation Counsel had urged City Hall to fire me if at this point I refused to drop the case and supply the photographs to the District Attorney. The press coverage in the early stages of the case undoubtedly played a role in the Administration's decision to ignore Corporation Counsel's advise: reports of the lower court proceedings in the Daily News (70) and the New York Times (71) were objected, subdued, and nonjudgemental. The only editorial comment in the New York City newspapers appeared in the Post, which applauded the refusal of the NYC MMTP to comply with the subpoena (72).

xxxiv. Under this Act, directors of research projects studying the effect of drugs could apply to the Attorney General for special, absolute privileges against enforced disclosure of patient information. It was subsequently learned that the NYC MMTP was the first addiction treatment program to request and receive such a Grant of Confidentiality.

xxxv. The balancing test was designed to guide the courts in determining whether a program should be permitted to release patient information without consent: "In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, the the physician-patient relationship, and to the treatment services" (79).

xxxvi. The federal confidentiality regulations promulgated July, 1975, clearly recognized the need for adequate legal representation: "...[E]xperience has demonstrated that independent council may be of crucial importance. The leading case construing 21 U.S.C. 1175, People v. Newman... would never have been presented to the courts but for the fact that legal council for Dr. Newman was furnished on a pro bono publico basis by a private law firm. In an entirely different case, a United States District Court appears to have issued a wholly inappropriate order under 21 U.S.C. 1175 in a case in which the treatment program was operated by an agency of the United States Government, and either was unrepresented, or was represented by the same attorney representing the agency seeking the order" (83). Because of this recognition, the new regulations specifically state: "Any application [for a court order to secure confidential information]... shall be denied unless the court makes an explicit finding to the effect that the program has been afforded the opportunity to be represented by council independent of council for the applicant, and in the case of any program operated by any department or agency of Federal, State, or local Government, is in fact so represented" (84).