BILL NUMBER: SB 1407 CHAPTERED
BILL TEXT
CHAPTER 657
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2012
APPROVED BY GOVERNOR SEPTEMBER 27, 2012
PASSED THE SENATE AUGUST 27, 2012
PASSED THE ASSEMBLY AUGUST 23, 2012
AMENDED IN ASSEMBLY JUNE 20, 2012
AMENDED IN ASSEMBLY JUNE 12, 2012
AMENDED IN SENATE APRIL 30, 2012
AMENDED IN SENATE APRIL 16, 2012
AMENDED IN SENATE MARCH 29, 2012
INTRODUCED BY Senator Leno
FEBRUARY 24, 2012
An act to add Section 56.106 to the Civil Code, to add Section
123116 to the Health and Safety Code, and to add Section 5328.03 to
the Welfare and Institutions Code, relating to medical information.
LEGISLATIVE COUNSEL'S DIGEST
SB 1407, Leno. Medical information: disclosure.
Existing law governs the release of a patient's medical records
and medical information by a health care provider, health care
service plan, pharmaceutical company, or provider. A violation of
these provisions that causes economic loss or personal injury to a
patient is punishable as a misdemeanor. Under existing law, a patient
may inspect his or her medical records if the patient or his or her
representative, as defined, presents a written request to the health
care provider. Existing law also authorizes a health care provider,
health care service plan, pharmaceutical company, or contractor to
release a patient's medical information after receiving a valid
signed authorization from the patient, the patient's legal
representative, as defined, if the patient is a minor or incompetent,
and other specified individuals. Existing law provides that a minor
may be removed from the physical custody of his or her parents in
dependency proceedings if there is a substantial danger to the
physical health of the child or the child is suffering severe
emotional damage and there are no reasonable means to protect the
child without removing him or her.
This bill would prohibit a psychotherapist, as defined, who knows
that a minor has been removed from the physical custody of his or her
parent or guardian in dependency proceedings, from releasing or
disclosing the information in the mental health records of that minor
patient to the patient's parent or guardian based solely on an
authorization to release those records signed by the parent or
guardian, and from allowing the parent or guardian to inspect or
obtain those records, unless the juvenile court has authorized the
parent or guardian to sign an authorization for the release of those
records after finding that the authorization order would not be
detrimental to the minor. Under the bill, when the juvenile court
issues such an order, the parent or guardian would be required to
present a copy of the order to the psychotherapist before the release
of the records or any information about the minor. When presented
with the order, the psychotherapist would have no duty to inquire
into whether a minor has been removed from the physical custody of
his or her parent or guardian in dependency proceedings. Because a
violation of these provisions that causes economic loss or personal
injury to a patient would be punishable as a misdemeanor, this bill
would impose a state-mandated local program. The bill would not
affect a psychotherapist's ability to deny a parent's or guardian's
request to inspect or obtain a minor's records in specified
circumstances, and would not affect the psychotherapist's immunity
from liability for that decision.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 56.106 is added to the Civil Code, to read:
56.106. (a) Notwithstanding Section 3025 of the Family Code,
paragraph (2) of subdivision (c) of Section 56.11, or any other
provision of law, a psychotherapist who knows that a minor has been
removed from the custody of his or her parent or guardian pursuant to
Article 6 (commencing with Section 300) to Article 10 (commencing
with Section 360), inclusive, of Chapter 2 of Part 1 of Division 2 of
the Welfare and Institutions Code shall not release the mental
health records of the minor patient and shall not disclose mental
health information about that minor patient based upon an
authorization to release those records signed by the minor's parent
or guardian. This restriction shall not apply if the juvenile court
has issued an order authorizing the parent or guardian to sign an
authorization for the release of the mental health records or the
information about the minor patient after finding that such an order
would not be detrimental to the minor patient.
(b) For purposes of this section, the following definitions apply:
(1) "Mental health records" means mental health records as defined
by subdivision (b) of Section 123105 of the Health and Safety Code.
(2) "Psychotherapist" means a provider of health care as defined
in Section 1010 of the Evidence Code.
(c) When the juvenile court has issued an order authorizing the
parent or guardian to sign an authorization for the release of the
mental health records or information about that minor patient under
the circumstances described in subdivision (a), the parent or
guardian seeking the release of the minor's records or information
about the minor shall present a copy of the court order to the
psychotherapist before any records or information may be released
pursuant to the signed authorization.
(d) Nothing in this section shall be construed to prevent or limit
a psychotherapist's authority under subdivision (a) of Section
123115 of the Health and Safety Code to deny a parent's or guardian's
written request to inspect or obtain copies of the minor patient's
mental health records, notwithstanding the fact that the juvenile
court has issued an order authorizing the parent or guardian to sign
an authorization for the release of the mental health records or
information about that minor patient. Liability for a psychotherapist'
s decision not to release the mental health records of the minor
patient or not to disclose information about the minor patient
pursuant to the authority of subdivision (a) of Section 123115 of the
Health and Safety Code shall be governed by that section.
(e) Nothing in this section shall be construed to impose upon a
psychotherapist a duty to inquire or investigate whether a child has
been removed from the physical custody of his or her parent or
guardian pursuant to Article 6 (commencing with Section 300) to
Article 10 (commencing with Section 360), inclusive, of Chapter 2 of
Part 1 of Division 2 of the Welfare and Institutions Code when a
parent or guardian presents the minor's psychotherapist with an
authorization to release information or the mental health records
regarding the minor patient.
SEC. 2. Section 123116 is added to the Health and Safety Code, to
read:
123116. (a) Notwithstanding Section 3025 of the Family Code,
paragraph (2) of subdivision (c) of Section 56.11 of the Civil Code,
or any other provision of law, a psychotherapist who knows that a
minor has been removed from the physical custody of his or her parent
or guardian pursuant to Article 6 (commencing with Section 300) to
Article 10 (commencing with Section 360), inclusive, of Chapter 2 of
Part 1 of Division 2 of the Welfare and Institutions Code shall not
allow the parent or guardian to inspect or obtain copies of mental
health records of the minor patient. This restriction shall not apply
if the juvenile court has issued an order authorizing the parent or
guardian to inspect or obtain copies of the mental health records of
the minor patient after finding that such an order would not be
detrimental to the minor patient.
(b) For purposes of this section, the following definitions apply:
(1) "Mental health records" means mental health records as defined
by subdivision (b) of Section 123105.
(2) "Psychotherapist" means a provider of health care as defined
in Section 1010 of the Evidence Code.
(c) When the juvenile court has issued an order authorizing the
parent or guardian to inspect or obtain copies of the mental health
records of a minor patient under the circumstances described in
subdivision (a), the parent or guardian requesting to inspect or
obtain copies of the mental health records of the minor patient shall
present a copy of the court order to the psychotherapist and shall
comply with subdivisions (a) and (b) of Section 123110 before the
records may be accessed by the parent or guardian.
(d) Nothing in this section shall be construed to prevent or limit
a psychotherapist's authority under subdivision (a) of Section
123115 to deny a parent's or guardian's written request to inspect or
obtain copies of the minor patient's mental health records,
notwithstanding the fact that the juvenile court has issued an order
authorizing the parent or guardian to inspect or obtain copies of the
minor patient's mental health records. Liability for a
psychotherapist's decision not to allow the parent or guardian to
inspect or obtain copies of records pursuant to the authority of
subdivision (a) of Section 123115 shall be governed by that section.
(e) Nothing in this section shall be construed to impose upon a
psychotherapist a duty to inquire or investigate whether a child has
been removed from the physical custody of his or her parent or
guardian pursuant to Article 6 (commencing with Section 300) to
Article 10 (commencing with Section 360), inclusive, of Chapter 2 of
Part 1 of Division 2 of the Welfare and Institutions Code when a
parent or guardian presents the minor's psychotherapist with a
written request to inspect or obtain copies of the minor's mental
health records.
SEC. 3. Section 5328.03 is added to the Welfare and Institutions
Code, to read:
5328.03. (a) (1) Notwithstanding Section 5328 of this code,
Section 3025 of the Family Code, or paragraph (2) of subdivision (c)
of Section 56.11 of the Civil Code, a psychotherapist who knows that
a minor has been removed from the physical custody of his or her
parent or guardian pursuant to Article 6 (commencing with Section
300) to Article 10 (commencing with Section 360), inclusive, of
Chapter 2 of Part 1 of Division 2 shall not release mental health
records of the minor patient and shall not disclose mental health
information about that minor patient based upon an authorization to
release those records or the information signed by the minor's parent
or guardian. This restriction shall not apply if the juvenile court
has issued an order authorizing the parent or guardian to sign an
authorization for the release of the records or information after
finding that such an order would not be detrimental to the minor
patient.
(2) Notwithstanding Section 5328 of this code or Section 3025 of
the Family Code, a psychotherapist who knows that a minor has been
removed from the physical custody of his or her parent or guardian
pursuant to Article 6 (commencing with Section 300) to Article 10
(commencing with Section 360), inclusive, of Chapter 2 of Part 1 of
Division 2 shall not allow the parent or guardian to inspect or
obtain copies of mental health records of the minor patient. This
restriction shall not apply if the juvenile court has issued an order
authorizing the parent or guardian to inspect or obtain copies of
the mental health records of the minor patient after finding that
such an order would not be detrimental to the minor patient.
(b) For purposes of this section, the following definitions apply:
(1) "Mental health records" means mental health records as defined
by subdivision (b) of Section 123105 of the Health and Safety Code.
(2) "Psychotherapist" means a provider of health care as defined
in Section 1010 of the Evidence Code.
(c) (1) When the juvenile court has issued an order described in
paragraph (1) of subdivision (a), the parent or guardian seeking the
release of the minor's mental health records or information about the
minor shall present a copy of the court order to the psychotherapist
before any records or information may be released pursuant to the
signed authorization.
(2) When the juvenile court has issued an order described in
paragraph (2) of subdivision (a) the parent or guardian seeking to
inspect or obtain copies of the mental health records of the minor
patient shall present a copy of the court order to the
psychotherapist and shall comply with subdivisions (a) and (b) of
Section 123110 of the Health and Safety Code before the parent or
guardian is allowed to inspect or obtain copies of the mental health
records of the minor patient.
(d) Nothing in this section shall be construed to prevent or limit
a psychotherapist's authority under subdivision (a) of Section
123115 of the Health and Safety Code to deny a parent's or guardian's
written request to inspect or obtain copies of the minor patient's
mental health records, notwithstanding the fact that the juvenile
court has issued an order authorizing the parent or guardian to sign
an authorization for the release of the mental health records or
information about that minor patient, or to inspect or obtain copies
of the minor patient's health records. Liability for a
psychotherapist's decision not to release records, not to disclose
information about the minor patient, or not to allow the parent or
guardian to inspect or obtain copies of the mental health records
pursuant to the authority of subdivision (a) of Section 123115 of the
Health and Safety Code shall be governed by that section.
(e) Nothing in this section shall be construed to impose upon a
psychotherapist a duty to inquire or investigate whether a child has
been removed from the physical custody of his or her parent or
guardian pursuant to Article 6 (commencing with Section 300) to
Article 10 (commencing with Section 360), inclusive, of Chapter 2 of
Part 1 of Division 2 when a parent or guardian presents the minor's
psychotherapist with an order authorizing the parent or guardian to
sign an authorization for the release of information or the mental
health records regarding the minor patient or authorizing the parent
or guardian to inspect or obtain copies of the mental health records
of the minor patient.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.