Health Records Confidentiality and Legal Protections
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Incompetency & Adult Guardianship
May 2019
Mark Botts
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•
Healthcare information is
confidential
–
Protected under HIPAA
–
Privileged under state law
•
Some information has
additional protection
–
Mental illness
–
Intellectual or developmental
disability
–
Substance use disorder
–
Communicable disease
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To legally disclose information, they need
either a
–
Law
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Patient authorization, or
–
Court order
that, under the particular
circumstances,
permits or requires disclosure
D
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o
f
C
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a
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y
•
Applies to the patient’s treatment provider
•
Applies whether the information is
recorded or not—whether conveyed in
writing or verbally
•
Under some laws, the duty extends to
those who receive information from
treatment providers
–
Information governed by the state mental
health confidentiality law—G.S. 122C
–
Information governed by the federal substance
use records law—42 C.F.R. 2
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W
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I
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f
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1.
Court order or other legal process that
compels disclosure
2.
Patient or personal representative gives
provider written authorization to disclose
3.
Patient obtains information or record and
provides it
1
.
C
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O
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r
•
All 5 laws discussed in this session authorize
disclosure pursuant to a court order
•
Most laws—HIPAA, state MH/DD/SA,
communicable disease—do not set forth any
particular
legal standard or criteria
for
determining whether to issue the order.
•
Generally, you should
balance
the public’s
interest in disclosure—that truth be known
and justice be done—with the individual’s
interest in privacy
T
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T
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relevant
necessary
privacy
public
interests
interests
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?
•
What are the questions before you?
–
Can respondent manage her own affairs?
–
Can respondent make or communicate
important decisions concerning his person,
family, or property?
–
What is the nature or extent of the needed
guardianship?
•
Will the information help answer these
questions?
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?
•
Is the information necessary?
–
Do you need it to understand or decide an
issue that is essential to adjudicating the
case?
–
Or, does the information speak to a
question that has already been answered?
–
Or, are there other ways of getting the
information?
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SUD records of parents were not relevant during
the adjudication stage of neglect and
dependency proceeding. County DSS had
sufficient evidence of mother and father's
substance abuse without including their
substance abuse records, and nothing indicated
that the records would provide additional
evidence regarding the neglect and dependency
of the children.
P
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d
i
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f
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a
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•
A judge may compel disclosure of
privileged information if, in the court's
opinion, disclosure is “necessary to the
proper administration of justice”
•
What about the clerk?
–
“If the case is in district court the judge shall
be a district court judge, and if the case is in
superior court the judge shall be a superior
court judge.”
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A
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L
a
w
•
Any judicial review of records—including any
hearing or oral argument on the disclosure
question—must be
in
camera
•
Court must find “good cause” for disclosure
–
Other ways of obtaining the information are not available
or would not be effective
–
The public interest and need for the disclosure outweigh
the potential injury to the patient, the physician-patient
privilege, and the treatment services
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Court must limit disclosure to:
•
Those parts of the record that are essential
to fulfilling the objective of the order
•
Those persons whose need for the
information forms the basis for the order
C
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D
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a
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I
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•
Applies to information about a person
who has or
may have
a reportable
communicable disease or condition
•
Patient or personal representative
may request in camera review
•
Close hearing?
•
“In the trial, the trial judge may, during
the taking of testimony concerning such
information, exclude from the courtroom all
persons except the officers of the court,
the parties and those engaged in the trial…”
Summary Findings
•
Information is relevant
•
Information is necessary
–
To proper administration of justice
–
Other ways of obtaining information are not
available or effective
•
The public interest and need for the
disclosure—so that truth be known and
justice done—outweigh the potential injury to
the patient’s privacy interests [the physician-
patient privilege, and the treatment services]
C
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t
O
r
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c
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Basic requirements:
Who is being ordered to disclose?
What information?
To whom?
Have you identified the applicable confidentiality laws?
Do you make the findings required by law or otherwise
apply a standard for disclosure?
Do you limit your order to those parts of the record
that are essential to fulfilling the order’s objectives?
Do you the limit disclosure to those persons whose
need for the information forms the basis of the order?
2
.
W
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F
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P
a
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-
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a
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e
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I
n
f
o
•
Patient generally has right of
access to own records/
information (rare exceptions)
•
Confidentiality laws do not
prohibit or otherwise
regulate a patient’s self-
disclosures
Q
u
e
s
t
i
o
n
s
?
Mark Botts
919.962.8204
botts@sog.unc.edu
Health records, including mental health and substance abuse records, are confidential and protected under laws such as HIPAA and state regulations. Healthcare professionals require legal authorization to disclose such information, ensuring patient privacy and upholding confidentiality duties. The duty of confidentiality extends to both treatment providers and recipients of sensitive information, safeguarding individuals' health data.
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Presentation Transcript
Health, Mental Health, and Substance Abuse Records Incompetency & Adult Guardianship May 2019 Mark Botts
Healthcare professional perspective on medical records Healthcare information is confidential Protected under HIPAA Privileged under state law Some information has additional protection Mental illness Intellectual or developmental disability Substance use disorder Communicable disease
Law HIPAA privacy rule (federal) Information covered Protected health information (PHI) Information that identifies an individual and pertains to: Health status or condition, or Provision of health care, or Payment for provision of health care. 45 C.F.R. 160 Privileges (state) Privileged information Info tied to a professional treatment relationship recognized by statute. Physician-patient, nurse-patient, social worker-client, counselor-client, psychologist-client, etc. G.S. 8-53 thru 8- 53.13. Communicable disease (state) G.S. 130A-143 Confidential information Information that identifies someone who has or may have a reportable communicable disease
Law Information covered MH/DD/SA (state) Confidential information Information that identifies an individual as receiving services from a provider of : Mental health, Developmental disabilities, or Substance abuse services Confidential information Information received by a substance abuse treatment program that identifies an individual as a recipient of alcohol or drug abuse services, or an indiividual who abuses alcohol or drugs G.S. 122C-51 thru -56. Substance use disorder records (federal) 42 C.F.R. Part 2
Healthcare professional perspective on medical records To legally disclose information, they need either a Law Patient authorization, or Court order that, under the particular circumstances, permits or requires disclosure
Duty of Confidentiality Applies to the patient s treatment provider Applies whether the information is recorded or not whether conveyed in writing or verbally Under some laws, the duty extends to those who receive information from treatment providers Information governed by the state mental health confidentiality law G.S. 122C Information governed by the federal substance use records law 42 C.F.R. 2
Three Ways to Get Information 1. Court order or other legal process that compels disclosure 2. Patient or personal representative gives provider written authorization to disclose 3. Patient obtains information or record and provides it
1. Court Order All 5 laws discussed in this session authorize disclosure pursuant to a court order Most laws HIPAA, state MH/DD/SA, communicable disease do not set forth any particular legal standard or criteria for determining whether to issue the order. Generally, you should balance the public s interest in disclosure that truth be known and justice be done with the individual s interest in privacy
The Public Interest Test relevant necessary privacy interests public interests
Is the Information Relevant? What are the questions before you? Can respondent manage her own affairs? Can respondent make or communicate important decisions concerning his person, family, or property? What is the nature or extent of the needed guardianship? Will the information help answer these questions?
Is the Information Necessary? Is the information necessary? Do you need it to understand or decide an issue that is essential to adjudicating the case? Or, does the information speak to a question that has already been answered? Or, are there other ways of getting the information?
In re E.P., M.P. 183 N.C. App. 301, 645 S.E.2d 772 (2007) SUD records of parents were not relevant during the adjudication stage of neglect and dependency proceeding. County DSS had sufficient evidence of mother and father's substance abuse without including their substance abuse records, and nothing indicated that the records would provide additional evidence regarding the neglect and dependency of the children.
Privileged information A judge may compel disclosure of privileged information if, in the court's opinion, disclosure is necessary to the proper administration of justice What about the clerk? If the case is in district court the judge shall be a district court judge, and if the case is in superior court the judge shall be a superior court judge.
Federal Substance Abuse Law Any judicial review of records including any hearing or oral argument on the disclosure question must be incamera Court must find good cause for disclosure Other ways of obtaining the information are not available or would not be effective The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient privilege, and the treatment services
Federal Substance Abuse Law Court must limit disclosure to: Those parts of the record that are essential to fulfilling the objective of the order Those persons whose need for the information forms the basis for the order
Communicable Disease Info Applies to information about a person who has or may have a reportable communicable disease or condition Patient or personal representative may request in camera review Close hearing? In the trial, the trial judge may, during the taking of testimony concerning such information, exclude from the courtroom all persons except the officers of the court, the parties and those engaged in the trial
Summary Findings Information is relevant Information is necessary To proper administration of justice Other ways of obtaining information are not available or effective The public interest and need for the disclosure so that truth be known and justice done outweigh the potential injury to the patient s privacy interests [the physician- patient privilege, and the treatment services]
Court Order Checklist Basic requirements: Who is being ordered to disclose? What information? To whom? Have you identified the applicable confidentiality laws? Do you make the findings required by law or otherwise apply a standard for disclosure? Do you limit your order to those parts of the record that are essential to fulfilling the order s objectives? Do you the limit disclosure to those persons whose need for the information forms the basis of the order?
2. Written Authorization HIPAA: Required elements and statements Other laws: Additional elements Form: Providers create forms to meet the particular requirments that govern them.
3. Patient-obtained Info Patient generally has right of access to own records/ information (rare exceptions) Confidentiality laws do not prohibit or otherwise regulate a patient s self- disclosures
Questions? Mark Botts 919.962.8204 botts@sog.unc.edu
