BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 681|
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THIRD READING
Bill No: AB 681
Author: Hernandez (D)
Amended: 6/23/09 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 6/16/09
AYES: Corbett, Florez, Leno, Walters
NO VOTE RECORDED: Harman
ASSEMBLY FLOOR : 78-0, 5/11/09 (Consent) - See last page
for vote
SUBJECT : Confidentiality of medical information:
psychotherapy
SOURCE : California Association of Marriage and Family
Therapists
DIGEST : This bill, with specified exceptions, permits a
health care provider to disclose information about a
patients participation in outpatient psychotherapy without
requiring a written signed request from the entity
requesting the information.
ANALYSIS : Existing law, Confidentiality of Medical
Information Act (CMIA), prohibits a health care provider,
health care service plan, or contractor from disclosing
medical information regarding a patient, enrollee, or
subscriber without first obtaining an authorization, except
as specified. (Civ. Code Sec. 56.10(a).) Existing law
CONTINUED
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requires a provider of health care, health care service
plan, or contractor to disclose medical information if the
disclosure is compelled as specified (Civ. Code Sec.
56.10(b)) and permits a provider of health care or service
plan to disclose medical information in specified
circumstances. (Civ. Code Sec. 56.10(c).)
Existing law provides that a psychotherapist may disclose
medical information about a patient, consistent with
applicable law and standards of ethical conduct, if the
psychotherapist, in good faith, believes that the
disclosure is necessary to prevent or lessen a serious and
imminent threat to the health or safety of a reasonably
foreseeable victim or victims, and the disclosure is made
to a person or persons reasonably able to prevent or lessen
the threat, including the target of the threat. (Civ. Code
Sec. 56.10(c)(19).)
Existing law prohibits a health care provider, health care
service plan, or contractor, from disclosing medical
information regarding a patient's participation in
outpatient treatment with a psychotherapist to persons or
entities authorized by law to receive that information,
except when the disclosure is for the purposes of diagnosis
or treatment, unless the person or entity requesting the
information submits to the health care provider, health
care service plan, or contractor a signed written request
that includes all of the following:
1.The specific information relating to a patient's
participation in outpatient treatment with a
psychotherapist being requested and its specific intended
use or uses;
2.The length of time during which the information will be
kept before being destroyed;
3.A statement that the information will not be used for any
purpose other than its intended use; and
4.A statement that the person or entity requesting the
information will destroy the information and all copies
in the person's or entity's possession or control or will
return the information and all copies of it when the
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specified timeframe has expired. (Civ. Code Sec.
56.104(a).)
Existing law requires the person or entity requesting the
information to submit a copy of the written request to the
patient within 30 days of receipt of the information
requested, unless the patient has waived his or her right
to a copy. (Civ. Code Sec. 56.104(b).)
Existing law provides that these notice requirements do not
apply to the disclosure or use of medical information by a
law enforcement agency when required for an investigation
of unlawful activity, unless the disclosure is otherwise
prohibited by law. (Civ. Code Sec. 56.104(d).)
Existing case law provides that a psychotherapist has a
duty not only to his or her patients, but to any person or
persons threatened by the patient, and holds that the
general public policy favoring the privileged nature of the
patient-psychotherapist communication must yield to such an
extent that disclosure is necessary to avert danger to
others. ( Tarasoff v. Regents of the University of
California, supra, 17 Cal.3d 425.)
Existing law provides that there shall be no monetary
liability on the part of, and no cause of action shall
arise against, a psychotherapist in failing to warn of and
protect from a patient's threatened violent behavior or
failing to predict and warn of and protect from a patient's
violent behavior except where the patient has communicated
to the psychotherapist a serious threat of physical
violence against a reasonably identifiable victim or
victims. (Civ. Code Sec. 43.92(a).) Existing law also
specifies that there shall be no monetary liability on the
part of, and no cause of action shall arise against, a
psychotherapist who, under the limited circumstances
specified in Section 43.92(a), discharges his or her duty
to warn and protect by making reasonable efforts to
communicate the threat to the victim or victims and to law
enforcement. (Civ. Code Sec. 43.92(b).)
Existing law provides, as to the admissibility of evidence,
an exemption to the patient-psychotherapist privilege if
the psychotherapist has reasonable cause to believe that
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the patient is in such mental or emotional condition as to
be dangerous to himself or to the person or property of
another and that disclosure of the communication is
necessary to prevent the threatened danger. (Evid. Code
Sec. 1024.)
This bill, with specified exceptions, permits a health care
provider to disclose information about a patient's
participation in outpatient psychotherapy when the
patient's psychotherapist believes, in good faith, that
disclosure is necessary to prevent or lessen a serious and
imminent threat to the health or safety of a reasonably
foreseeable victim without requiring the entity requesting
the information to submit the written signed request that
is currently required under Civil Code Section 56.104(a),
described above.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/23/09)
California Association of Marriage and Family Therapists
(source)
American Association for Marriage and Family Therapy
California Psychiatric Association
California Society for Clinical Social Work
Los Angeles County District Attorney's Office
National Association of Social Workers, California Chapter
ARGUMENTS IN SUPPORT : According to the author's office:
The California Confidentiality of Medical Information
Act generally prohibits the disclosure of medical
information. There are a number of exceptions,
however - one example is the so-called "dangerous
patient" who poses a serious danger to others. Under
Tarasoff v. Regents of University of California (1976)
a therapist has a duty to exercise reasonable care to
protect the foreseeable victim of that danger, and
Civil Code Section 56.10 (c)(19) similarly authorizes
an exception to confidentiality under such
circumstances. This exception was created in 2007.
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A problem arises, however, in that another Civil Code
Section, 56.104, requires an elaborate and
time-consuming request and notification process when a
psychotherapist shares information relating to a
patient's participation in outpatient treatment. In
situations that require prompt action because of a
"dangerous" patient - for example a police officer has
been informed of an imminent threat made by a patient
- Section 56.104 as written would require the officer
to submit a fairly detailed written request to the
therapist and patient. This could severely hamper the
goal of quick action to protect the public.
The California Association of Marriage and Family
Therapists, additionally explains that Civil Code Section
56.10(c)(19), which permits a psychotherapist to disclose
information when necessary to prevent a serious and
imminent threat, "requires quick action" and "[i]f a police
officer has been notified about a violent patient and has
asked a psychotherapist for information about that patient
relevant to the psychotherapy and the danger he/she
presents, it is unnecessary, illogical, and likely harmful
to the victim if the officer is required to submit the
written request to the patient and to the psychotherapist
per Section 56.104. If the Section 56.104 procedural
requirements are not waived as applied to Section
56.10(c)(19), the dangerous patient permissive breach
section would be self defeating and the goal of quick
action to protect the public will be severely hampered."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,
Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Krekorian, Lieu,
Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning,
Nava, Nestande, Niello, Nielsen, John A. Perez, V. Manuel
Perez, Portantino, Price, Ruskin, Salas, Saldana, Silva,
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Skinner, Smyth, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Bass
NO VOTE RECORDED: Duvall, Yamada
RJG:nl 6/23/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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