Tuesday, February 1
Since You Asked
Question: Can you update us on confidentiality and privileged communication issues and what to do if someone wants a copy of their record, or if we are subpoenaed? Are there special issues with children’s records?
Social workers are bound to maintain client confidentiality as a basic professional principle. Illinois and federal statutes and regulations define the parameters of clients’ and providers’ rights and responsibilities – and those of third parties seeking access to confidential information. These rights and responsibilities are context-specific, and it is not always easy to ferret out the rules in every situation. Breach of confidentiality puts a social worker at risk for civil and criminal state and federal liability and license discipline. The list of legal sources of confidentiality found in the text box along with this article should be helpful in locating the right law for the purpose. We can only cover a few of the highlights here.
THE ILLINOIS CLINICAL SOCIAL WORK AND SOCIAL WORK PRACTICE ACT
Section 16 of the Practice Act prohibits social workers from disclosing confidential information except with the written, informed authorization of the person who provided the information, or in the case of the person’s death or disability, his or her personal representative or beneficiary under a health or life insurance policy.
Disclosures may be made without client authorization to protect a person from a clear, imminent risk of serious mental or physical harm or injury, or to forestall a serious threat to the public safety (Note: there is no requirement to disclose; the statute is permissive); when the person waives confidentiality by bringing public charges against the licensee; as otherwise required or permitted by statute.
Social workers may be required to testify in judicial proceedings concerning crimes in which a minor is the victim if the court, after reviewing the information in camera, determines that the minor’s confidentiality interests and need for protection are outweighed by the requirements of justice and public safety. They may voluntarily (that is, no subpoena or court order is required) testify in court hearings concerning matters of adoption, child abuse, child neglect or other matters pertaining to children, except as otherwise provided under ANCRA.
In the event of a conflict between Section 16 and the Mental Health and DD Confidentiality Act, the Confidentiality Act supervenes.
The Illinois Mental Health and Developmental Disability Confidentiality Act
All records and communications are confidential and must not be disclosed except as provided in the Act.
The Act applies to communications made to a therapist (includes social workers), or to or in the presence of other persons, during or in connection with providing mental health or developmental disability services to a recipient, and includes information which indicates that a person is a recipient (means a mental health client/patient). Record means any record, kept in any form or format, about the recipient and services provided.
Services includes but is not limited to examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare, habilitation or rehabilitation. Mental health treatment is “an effort to accomplish an improvement in the mental condition or related behavior of a recipient” and includes all activities connected therewith.
Personal notes maybe kept by a therapist, but are not required. They may consist of the following:
– information disclosed to the therapist in confidence by third parties on condition of non-disclosure to the recipient or other persons;
– information disclosed to the therapist by the recipient which would be injurious to the recipient’s relationships to other persons, and
– the therapist’s speculations, impressions, hunches, and reminders.
Personal Notes are not record for Confidentiality Act purposes if they are kept in the therapist’s sole possession for his or her personal use and not disclosed to anyone other than the therapist’s supervisor, consulting therapist or attorney. If at any time such notes are disclosed, they become record for purposes of the Act. Personal notes arenot accessible to the client orothers and not subject to subpoena.However, a court may require that they be produced for in camera inspection to determine if they meet the statutory requirements for nondisclosure.
Personal notes are a vehicle for protection of confidentiality and privacy. For example, records of a child caught in the crossfire of the parents’ divorce are accessible to both parents, subject to Confidentiality Act Section 4. A therapist may determine that certain of the child’s communications would be injurious to her relationship to one parent or the other and might, therefore, record them in personal notes, which are not subject to subpoena or inspection by the parents – because they are not record.
Access to Mental Health RecordsSection 4 of the Confidentiality Act provides that the following persons have an absolute right to examine and copy mental health records: – a recipient 12 years of age or older, an adult recipient’s guardian or agent under a power of attorney for health care or property – the parent or guardian of a recipient who is at least 12 but under 18 years, if the recipient is informed and does not object or if the therapist does not find that there are compelling reasons for denying the access. A parent or guardian denied access may petition a court for access to the record. The parent or guardian of a recipient between 12 and 17 years old has a right to know current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication, if any. – a parent or guardian of a child under 12 years old – an attorney or guardian ad litem who represents a minor 12 years of age or older in any judicial or administrative proceeding, if the court or administrative hearing officer has so ordered.
Some details left out of the Confidentiality Act are found in Section 8-2003 of the Illinois Code of Civil Procedure. A written request for examining and copying of the records received by the practitioner from an authorized person must be complied with within 30 days of receipt. If more time to comply is needed, the practitioner must provide the requesting party with a written statement of the reasons for the delay and the date by which the requested information will be provided. In any event, the practitioner must provide the requested information no later than 60 days after receiving the request. If a provider fails to comply with the time limit requirement, and the recipient files suit to enforce the Section, expenses and reasonable attorneys’ fees may be recovered.
Fees for Copies of Mental Health Records
Under Section 8-2003 social workers and other health care providers may charge a reasonable fee for duplication of a record (other than for mental health records in indigency cases). Payment is required at the time of copying for the practitioner’s reasonable expenses for copying, not to exceed a $20 handling charge for processing the request for copies, and 75 cents per page for the first through 25th pages, 50 cents per page for the 26th through 50th pages, and 25 cents per page for all pages in excess of 50 (except that the charge shall not exceed $1.25 per page for any copies made from microfiche or microfilm), and actual shipping costs. Section 8-2006 provides for a rate adjustment based on the CPI. Confidentiality Act Section 4 requires providers to supply one copy of a recipient’s records without fee to government or not-for-profit agencies giving free legal services or advocacy for the indigent and who have received a valid written authorization from the recipient.
Disclosure without Authorization
Confidentiality Act Section 9 tracks with HIPAA. After prior notice to the recipients, confidential information may be disclosed without authorization for legitimate purposes involving care. The provider’s HIPAA privacy notification should include the factors set out in Section 9. Disclosure is limited to that which is essential to the purpose for which it is made. Redisclosure by the person receiving the information is forbidden.
PRIVILEGED COMMUNICATIONS - Disclosure in Legal Proceedings: Highlights
Confidentiality Act Section 10(a) creates a communications privilegeprotecting otherwise discoverable mental health information from disclosure in civil, criminal, administrative, and legislative proceedings. Section 10 also contains specific sections on confidentiality and privilege in annulment, divorce, parentage, and custody cases; cases in which pain and suffering are alleged; disclosures after the death of a deceased recipient; court-ordered examinations; guardianship proceedings; treatment under court to render a person fit to stand trial on a criminal charge; proceedings involving the validity of life, accident, health or disability insurance policies; any action brought under the Confidentiality Act; homicide investigations and trials; coroners’ investigations into the cause of a recipient’s death in a mental health facility; Juvenile Court proceedings; and to collect charges for mental health or developmental disabilities services. The rules are extremely complex and require the help of a lawyer to interpret them.
Privilege of Mental Health Records and Information – Section 10(a) Both the recipient and the therapist, on behalf and in the interest of a recipient, may assert a privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications. A therapist may assert a privilegecontrary to the express wish of therecipient, in which case the courtmay hold an in camera hearing toestablish whether disclosure is notin the best interest of the recipient.Disclosure may be prevented orlimited to the extent that otheradmissible evidence is sufficient toestablish the facts in issue.
Waiver of privilege occurs when a recipient introduces his or her mental condition, or any aspect of services received for the condition, as an element of his claim or defense in a legal or administrative proceeding. There are nuances and exceptions here, and certain steps must be followed before disclosure. Legal advice is really essential.
Court Order Required for Subpoena
Except in guardianship and fitness to stand trial proceedings, it is illegal for a party or attorney to serve a subpoena seeking to obtain access to mental health, DD or substance abuse records or communications unless the subpoena is accompanied by a written order issued by a judge authorizing the disclosure of the records or the issuance of the subpoena. It is also illegal for a person to comply with a subpoena which was not accompanied by a court order. (Section 10(d))
The HIPAA privacy regulations require patient authorization or a detailed protective order court order for subpoena and disclosure of any personal health information (PHI) for litigation. Under HIPAA, disclosure of psychotherapy notes requires a separate authorization, which cannot be used for disclosure of any other PHI. As between HIPAA and Illinois confidentiality law, the strictest relevant supervenes.
Protection of Record by Requesting In camera Review of Testimony/ Evidence
Before disclosing a record pursuant to a subpoena, any party to the proceedingor other interested person may request an in camera review of the record or communications. After review, the court may disclose all, none, or part of the record and enter appropriate protective orders to protect the confidentiality, privacy, and safety of the recipient or of other persons.
In camera Review to Determine Discoverability and Admissibility of Mental Health Records
In a court proceeding, a judge of the court in which the proceedings have been brought must first conduct an in camera review of the material. In an administrative proceeding, the court to which an appeal or otheraction for review of an administrativedetermination may be takenconducts the in camera review. After the in camera review, the court may order disclosure only to the extent that court finds that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; that other satisfactory evidence is unsatisfactory to establish the facts; and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm. The court may enter a protective order regarding what information may be disclosed and to whom, and what may be done with the information.
In civil and administrative cases, unless the adversary party establishes in the court a compelling need for additional information, the only relevant material is the fact of treatment, cost of services and ultimate diagnosis.
Which confidentiality or privilege statute is the right one in a particular case?
This is not always easily ascertained, and sometimes two or more statutes must be read together to arrive at the right answer. The need for competent legal advice cannot be over-estimated in the area of privilege. The text box list of legal sources for social work confidentiality and privilege law is not exhaustive, but it will guide the search.