Newletter Masthead
April 2001· Vol. 26, No. 2, pp. 4-6

Treatment and policing

Boundaries and role conflicts in managing sex offenders

Howard Zonana MD, Medical Director

The public furor over sex offender recidivism continues to spill over into criminal and civil systems in states that have adopted "Hendricks" type sexual predator statutes as well as those that have not. This spillover creates significant role problems for treatment providers who work with patients on probation or parole.

I would like to explore some of the role conflicts under discussion in Connecticut, since I believe the issues are not confined to our state alone. Connecticut has not adopted a civil commitment statute for "sexual predators". Sex offender treatment is currently being provided by a small number of private non-profit agencies that work under contract to the State. They provide services to sex offenders when they are released into the community on parole, probation, or at the end of their penal sentences. As part of their program, some of these agencies have probation officers attend treatment groups and even serve as co-treaters. The treatment agencies feel that this alliance with the probation department is an important part of their program. This system raises important ethical questions.

Probation officers, in this context, are analogous to social workers that investigate child abuse reports mandated by reporting statutes. Social workers assigned to perform these investigations would like to be viewed as helpful by their clients. They often see themselves as working toward the maintenance of intact families, where possible. The individuals who are investigated, however, usually see these investigations as threatening and as part of the police arm of the state, since the consequences of the investigation may result in criminal charges and/or loss of custody of their children.

Probation officers have some discretion as to when they file for a violation of probation charge, but typically they view themselves as extensions of the criminal justice system, such that if they hear of new crimes being disclosed they feel an obligation to bring that to the attention of the police or state's attorney. This can have a chilling effect on disclosures during group therapy and thus undermine the program. In my view, while I see an important role for probation officers as an adjunct to treatment programs, with their ability to have control over the intensity of monitoring and supervision, I see their attendance in therapy sessions as co-treaters or even observers as inappropriate, in that it presents a significant role conflict.

USSC: Ferguson
In a recent decision, the US Supreme Court in Ferguson, et al., v. City of Charleston et al., on March 21, 2001, drew a line for a permissible relationship between medical treatment and law enforcement or at least identified a situation where that line was inappropriately drawn. The case involved concerns of health care professionals about the growing numbers of pregnant women using cocaine. Staff members of the public hospital approached the City and a task force made up of Medical University of South Carolina (MUSC) representatives, police, and local officials was created. A policy was developed, setting forth procedures for identifying and testing pregnant patients suspected of drug use, and requiring that a chain of custody be followed when obtaining and testing patients' urine samples. This chain of custody permitted criminal prosecution of these patients if they did not follow through with treatment recommendations or used drugs around the time of delivery.

"In this case, however, the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment. This fact distinguishes this case from circumstances in which physicians or psychologists, in the course of ordinary medical procedures aimed at helping the patient herself, come across information that under rules of law or ethics is subject to reporting requirements, which no one has challenged here." (e.g. child abuse or gunshot wound reporting)

"Moreover, throughout the development and application of the policy, the Charleston prosecutors and police were extensively involved in the day-to-day administration of the policy. Police and prosecutors decided who would receive the reports of positive drug screens and what information would be included with those reports. Law enforcement officials also helped determine the procedures to be followed when performing the screens. In the course of the policy's administration, they had access to Nurse Brown's medical files on the women who tested positive, routinely attended the substance abuse team's meetings, and regularly received copies of team documents discussing the women's progress. Police took pains to coordinate the timing and circumstances of the arrests with the MUSC staff, and, in particular, Nurse Brown."

The Court held that: "A state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant."

This holding emphasizes the need for care in thinking through role relationships when the criminal justice system becomes entwined with treatment programs.

We have many models of ethically and legally acceptable collaborations that have been derived from the addiction treatment programs. Generally, such programs report to probation officers whether or not the patient is in "good standing" in treatment and may recommend increases in supervision when appropriate. "Good standing" definitions are made explicit for patients so that they understand when and what kind of disclosures will be made, e.g. three dirty urines within some specified time frame.

Relapses are an expectable part of both mental health and dual diagnosis treatment. To prevent those who are in treatment under criminal justice auspices from being automatically sent off to jail, it is essential to create a system of graduated sanctions and security. Thus a person unable to refrain from controlling their impulses while in an outpatient setting should have a residential or other appropriate level of care available as soon as his treaters are aware of the problem. Judges and other decision makers should be educated on issues related to relapse to dispel the perception that relapse necessarily equates with treatment failure. Of course the problem with sex offenders is that for most types of offenses, any recidivism may be unacceptable for some groups. The literature suggests, for example, that exhibitionists frequently relapse during the first six months of treatment and that such relapses do not portend a bad outcome. At what point limits are set, and when increased supervision, hospitalization, or reincarceration become appropriate responses are complicated issues. As such, they may need collaborative discussions (or policy development) between treatment providers and those responsible for law enforcement. In states with sexual predator civil commitment statutes, "offenders/patients" may have more stringent guidelines, similar to insanity acquittees. Yet the role issues are important for mental health professional to maintain in an era that is misusing treatment providers. Both supervisory and treatment roles are necessary and important, but boundaries need to be clarified and maintained to protect the integrity of each professional group.