BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1407 (Leno)
As Amended April 30, 2012
Hearing Date: May 8, 2012
Fiscal: Yes
Urgency: No
NR
SUBJECT
Medical Information: Disclosure
DESCRIPTION
This bill would prohibit a psychotherapist from disclosing
mental health records or information based solely on an
authorization signed by a parent or guardian of that minor if
the minor has been removed from the physical custody of that
parent or guardian in dependency proceedings for severe abuse or
neglect or risk of abuse, unless the court has issued an order
authorizing the parent or guardian to be the minor's
representative for the release of such information, upon finding
that it would not be detrimental to the minor patient.
This bill would create an exception for written mental health
records maintained in electronic or physical form by hospitals,
as specified, or for an oral disclosure of information.
BACKGROUND
According to kidsdata.org, over 58,000 children were in foster
care in California in 2010. Under existing law, children may
come within the jurisdiction of the court for a number of
reasons including actual or substantial risk of serious physical
harm inflicted non-accidentally by the parent, actual or
substantial risk of serious physical harm because of the failure
or inability of a parent to supervise the child; sexual abuse,
death of another child through the parent's abuse or neglect,
because the parent subjected child to acts of cruelty, or failed
to protect the child from acts of cruelty. (Welf. & Inst. Code
Sec. 300 (a)-(j).)
(more)
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The right to familial association, however, is fundamental. In
Santosky v. Kramer, the Supreme Court stated, "Even when blood
relationships are strained, parents retain vital interest in
preventing irretrievable destruction of their family life; if
anything, persons faced with forced dissolution of their
parental rights have more critical need for procedural
protections than do those resisting state intervention into
ongoing family affairs." (455 U.S. 745, 753. (1982).)
California's dependency law reflects these concerns, and is
focused on two primary aims: to ensure the child's safety,
protection, and physical and emotional well-being; and preserve
and strengthen the family. Generally, subject to a few
exceptions, parents, even noncustodial ones, retain their
parental rights until terminated. When a child is removed from
a parent's custody in dependency proceedings because of actual
or substantial risk of serious abuse or neglect, the court may
temporarily limit the parent's authority over developmental or
educational decisions, medical care, or the administration of
psychotropic medications, pending reunification or termination
of parental rights.
Existing law governs the release of a patient's medical records
and medical information, including mental health records, by a
health care provider, health care service plan, pharmaceutical
company, or provider. Under existing law, a patient or a
patient's representative may inspect his or her medical records
after presenting a written request, or authorization, to the
health care provider. Parents are generally considered
representatives of their children for the purpose of accessing
the child's medical information. When a parent attempts to
authorize the release of his or her child's mental health
records, the psychotherapist may only withhold the information
if the therapist thinks that the release of it would be
detrimental to the child. Once mental health records have been
released to a parent, there are few limits over how it may be
used. The parent may use the information in the record in
dependency, family or criminal proceedings, or may share the
information with other family members or the dependent child's
peers.
This bill would provide that therapists, as specified, may only
release the mental health information of a dependent child to a
noncustodial parent if there has been a court order, made upon
findings that this would not detrimental to the child,
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authorizing the parent to receive such information.
CHANGES TO EXISTING LAW
Existing federal law , the Health Insurance Portability and
Accountability Act (HIPAA), specifies privacy protections for
patients' protected health information and generally provides
that a covered entity, as defined, may not use or disclose
protected health information except as specified or as
authorized by the patient in writing. (45 C.F.R. Sec. 164.500
et seq.)
Existing law defines "medical information" to mean any
individually identifiable information, in electronic or physical
form, in possession of or derived from a provider of health
care, health care service plan, pharmaceutical company, or
contractor regarding a patient's medical history, mental or
physical condition, or treatment. Existing law defines
"individually identifiable" to mean that the medical information
includes or contains any element of personal identifying
information sufficient to allow identification of the
individual, such as the patient's name, address, electronic mail
address, telephone number, or social security number, or other
information that, alone or in combination with other publicly
available information, reveals the individual's identity. (Civ.
Code Sec. 56.05(g).)
Existing law 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).). Valid authorizations comply with HIPPA and
CIMA. (Civ. Code Sec. 56.11)
Existing law provides that a health care provider may disclose
health information to another health care provider for diagnosis
and treatment purposes without a signed authorization. (Civ.
Code Sec. 56.10(c)(1).)
Existing law authorizes minors, 12 years of age and older, to
consent to mental health treatment or counseling services if, in
the opinion of the attending professional person, the minor is
mature enough to participate intelligently in the mental health
treatment or counseling services. (Health & Saf. Code Sec.
124260.)
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Existing law provides that an adult patient of a health care
provider, any minor patient authorized by law to consent to
medical treatment, and any patient representative shall be
entitled to inspect the patient's records upon presenting to the
health care provider a written request for those records and
upon payment of reasonable clerical costs incurred in locating
and making the records available. (Health & Saf. Code Sec.
123110.)
Existing law provides that representatives are not entitled to
inspect or obtain copies of a minor patient's medical records if
the minor has a right to consent to the medical care or where
the health care provider determines that access to the records
would have a detrimental effect on the provider's professional
relationship with the minor or the minor's physical safety or
psychological well-being. (Health & Saf. Code Sec.
123115(a)(2).)
Existing law provides that a plaintiff may bring an action
against any person or entity who has negligently released his or
her confidential information or records in violation of the CMIA
as follows:
nominal damages of $1,000; and
the amount of actual damages. (Civ. Code Sec.
56.36(b).)
Existing law provides that a minor may be removed from the
physical custody of his or her parents for serious abuse or
neglect, or risk of serious abuse or neglect. (Welf. & Inst.
Code Sec. 300.)
This bill would provide that a psychotherapist shall not release
mental health records of a minor patient or disclose the
information therein based solely on an authorization to release
those records signed by the parent or guardian if that child has
been removed from the custody of the parent in dependency
proceedings, unless authorized to do so in a court order, issued
upon the finding that the order would not be detrimental to the
minor patient.
This bill would provide that the above prohibition does not
apply to a written mental health record maintained by a general
acute care hospital, an acute psychiatric hospital, or a special
hospital, as defined.
This bill would provide that the above prohibition does not
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apply to oral disclosures made to family members directly
related to that person's involvement with the care or related to
payment for the care, pursuant to Civil Code Section 56.1007.
COMMENT
1.Stated need for the bill:
In support of this bill, the author writes:
California law allows parents whose children have been
removed because of abuse, abandonment, or neglect to access
their children's mental health information, subject to some
discretion by the therapist. However, a noncustodial parent
may not be acting in their child's best interests when
authorizing use of the child's mental health treatment
information, and may use this confidential information to
further their own legal purposes, undermining the child's
stated wishes or best interests.
Children who lose trust in the confidentiality of their
communications may be unwilling to trust future therapists,
social worker,s or counselors. Treatment of a child who has
experienced abuse or neglect requires a sense of trust,
autonomy, and personal boundaries.
2.Limiting the ability of a parent, whose child has been removed
from his or her custody in dependency proceedings, to make
certain decisions regarding his or her child, is consistent
with existing law
This bill would prohibit a psychotherapist from disclosing
mental health records or information based solely on an
authorization signed by a parent or guardian of that minor if
the minor has been removed from the physical custody of that
parent or guardian in dependency proceedings for severe abuse or
neglect or risk of abuse, unless the court has issued an order
authorizing the parent or guardian to be the minor's
representative for the release of such information, upon finding
that it would not be detrimental to the minor patient.
When severe child abuse or a risk of abuse, comes to the
attention of the dependency system, the child is immediately and
temporarily removed from a parent's physical custody. Within
the next few weeks, largely based on evidence presented by a
social worker in his or her report, the court must determine
whether the child has suffered or is in substantial risk of
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serious harm. For the court to make this finding it must be
shown by a preponderance of the evidence that one or more of
these circumstance exist: serious physical harm from abuse, risk
of serious harm from neglect, serious emotional damage, sexual
abuse, the parent caused death of another child, the child has
been abandoned, or the child has been subjected to acts of
cruelty. (Welf. & Inst. Code Sec. 300.)
When a child is detained, the court must ascertain whether there
are child welfare services that would permit the child to return
home pending the next hearing, and, if appropriate, order
services to be provided as soon as possible to reunify the child
and family. (Welf. & Inst. Code Sec. 319(f).) Reunification with
a family takes place in the 12 months from the date of
detention. Parents are required to meet goals outlined in a
case plan submitted by the social worker. Where an exception to
reunification applies, or if at the end of the reunification
time frame the court finds that reunification is not in the
child's best interest, the court may begin terminating the
parent's rights to the child.
During the time a parent does not have physical custody of his
or her child, the court may restrict a parent's rights in a
number of ways. The court may limit the control a parent
exercises over educational or developmental services decisions,
as long as these limitations are specifically addressed in the
court order. (Welf. & Inst. Code Secs. 319(g); 361.) Courts
also have sole authority to make orders regarding the
administration of psychotropic medications for children who have
been removed from their parent's custody pursuant to Welfare and
Institutions Code Section 300. (Welf. & Inst. Code Sec.
369.5(a).)
These temporary restrictions on a parent's right to make
decisions for his or her child are left to the court's
discretion, so that the best interest of the child may be taken
into account. Children who have suffered severe abuse or
neglect at the hands of a parent may benefit from another adult
having decision making authority. Additionally, parents who
have temporarily lost custody of their children may also benefit
from court-ordered reunification services, and be better
equipped to make educational or developmental services decisions
in the future.
The Executive Committee of the Family law Section of the State
Bar of California (FLEXCOM) opposes this bill, unless it is
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amended. FLEXCOM writes that it "would withdraw its opposition
if the bill were amended to place the burden on the child
welfare or other counsel to show, by clear and convincing
evidence, that the parent or guardian's continued access to or
ability to authorize the release of mental health information is
detrimental to the child, while family reunification services
are being provided." FLEXCOM argues that this would better
reflect the dependency system's policy to support family
reunification.
In support of this bill, the East Bay Children's Law Offices
writes that, "a noncustodial parent may not be acting in their
child's best interest when authorizing use of the child's mental
health treatment or information, and may use this confidential
information to further their own legal purposes, undermining the
child's stated wishes or best interests. Children who lose trust
in the confidentiality of their mental health information may be
unwilling to trust future therapists, social workers or
counselors."
In the dependency system, noncustodial parents do not always act
in the best interest of their children. Mental health treatment
is necessary for children who have suffered abuse to heal, but
requires that a child trust his or her therapist. This bill
would seek to protect the best interests of children by
presuming that parents, who have lost custody of their children
in dependency proceedings, do not have access or the ability to
authorize the release of their child's mental health
information, subject to the court's discretion. In situations
where a court finds that it would not be detrimental to a child
to have access to this information, the court may authorize a
parent to do so, thereby protecting parent's rights to make
decisions for their children. This limitation is consistent with
the current law, discussed above, in that it serves the best
interest of the child and first requires a child be removed from
the custody of the parent because of severe abuse or the risk of
abuse, and is subject to the discretion of the court.
3.This bill would require a court order before a psychotherapist
may release mental health information to a noncustodial parent
whose child has been removed from his or her custody for abuse
or neglect
This bill would prohibit a psychotherapist, as defined, from
disclosing the mental health records or information of a minor
based solely on an authorization signed by the parent or
guardian of that minor if that minor has been removed from the
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physical custody of that parent in dependency proceedings.
The Confidentiality of Medical Information Act protects the
privacy of "medical information, defined as "individually
identifiable information . . . in possession of or derived from
a provider of health care . . . regarding a patient's medical
history, mental or physical condition, or treatment." (Civ. Code
Sec. 56.05(g).) A health care provider may not use or disclose
protected health information except as specified or as
authorized by the patient or patient's representative in
writing. (Health & Saf. Code Sec. 123110.)
Parents are generally considered a representative for disclosure
of their minor child's medical information. However, under
current law, health care providers need not release information
to a minor's representative if the health care provider
determines releasing the information would have a detrimental
effect on the provider's professional relationship with the
minor patient, the minor's physical safety, or psychological
well-being. (Health & Saf. Code Sec. 123115.) The California
Association of Marriage and Family Therapists (CAMFT), has
expressed support for the general intent of this bill, and is
working with the author to address concerns regarding how
specific Family Code sections will be impacted by SB 1407, and
whether therapists will be caught unaware that a child has been
removed from a parent's custody.
The ability of a therapist to maintain a minor's mental health
record in confidence where the release of it would be
detrimental to the child is clearly established under law. Yet,
there are many conceivable situations where a therapist may
anticipate a parent's intention regarding a child's mental
health records, or understand what harm may result from his or
her release of a minor's mental health information to a
noncustodial parent.
The provisions of this bill would allow the court and therapists
to better protect the best interests of the child by creating
stronger protections for their mental health records. Under this
bill, therapists who aware that a minor patient has been removed
from a parent's custody in dependency proceedings will be
prohibited from releasing the child's mental health records to a
parent, whether or not the parent signs an authorization that
would otherwise be valid. Noncustodial parents who have a
legitimate reason for accessing their child's mental health
record would need to request authorization from the court.
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Their reason will be noted on the record, which may further
reduce the number of parents who intentionally misuse a child's
confidential mental health information.
4.Exception for hospitals to this prohibition raises concerns
about the effectiveness of the bill
Under this bill, acute psychiatric hospitals, defined as a
"health facility having a duly constituted governing body with
overall administrative and professional responsibility and an
organized medical staff that provides 24-hour inpatient care for
mentally disordered, incompetent, or other patients referred to
in Division 5 (commencing with Section 5000) or Division 6
(commencing with Section 6000) of the Welfare and Institutions
Code, including the following basic services: medical, nursing,
rehabilitative, pharmacy, and dietary services," are excepted
from the requirement that a minor dependent child's mental
health records not be released to a parent who has lost custody
of his or her child in dependency proceedings.
The need for this exception is not entirely clear. In requiring
that mental health records not be released to parents who have
temporarily lost custody of their child in dependency
proceedings, this bill relies on the assumption that the vast
majority of therapists will know when a minor patient becomes a
dependent of the court. If therapists have up-to-date
information on a child's custody situation because of their
court-mandated communication with a child's social worker, why
would therapists at acute psychiatric hospitals not have this
information? If therapists at hospitals have current
information, why create an exception to the general rule?
From a policy standpoint, creating an exception for certain
facilities may reduce the likelihood the facilities will alter
their practices at all. Under current law, therapists may
refuse to release mental health information to a parent or a
minor's representative if the therapist feels it would be
detrimental to the therapist-child relationship or place the
child in harm. This discretion implies that therapists are
making informed decisions based on each child's situation.
Because only mental health records for therapists who work at
hospitals fall into an exception under this bill, the question
is raised as to who actually releases information to parents at
large facilities? It seems that children who have been removed
from the custody of their parent due to severe abuse or neglect
or the risk of abuse, and have a mental condition serious enough
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to merit enrollment in a fulltime, in-patient mental health
facility, need as much protection from the court as any other
dependent child. Because the need for and implications of
exempting psychiatric hospitals from the provisions of this bill
are unclear, the author may wish to consider amending this bill
to address this situation as the bill moves through the
legislative process.
Support : Children's Advocacy Institute of San Diego Law School;
Court Appointed Special Advocates (CASA); East Bay Children's
Law Offices; Legal Advocates for Children and Youth; Privacy
Rights Clearinghouse
Opposition : Executive Committee of Family Law Section of the
State Bar of California (FLEXCOM)
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
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