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Kathleen Donelli, White Plains lawyer, Children’s Records Law in New York

ACCESS TO MENTAL HEALTH RECORDS

By: Kathleen Donelli, Esq.

McCarthy, Fingar, Donovan,

Drazen & Smith, L.L.P.

11 Martine Avenue - 12th Floor

White Plains, New York 10606

Tel. No.: (914) 946-3700

E-Mail: kdonelli@mfdds.com

A. NYS Confidentiality Statutes

A clinician who divulges information about a patient to unauthorized parties without the patient's consent may be liable for any resulting damage (for example, patient's reputation, loss of employment opportunity). However, in Doe v. Community Health Plan-Kaiser Corporation, 268 A.D.2d 183, 709 N.Y.S.2d 215, 217 (3d Dep’t 2000), the court held that there is no private right of action under the NYS Confidentiality Statutes; “Instead, the duty not to disclose confidential personal information springs from the implied covenant of trust and confidence that is inherent in the physician-patient relationship, the breach of which is actionable as a tort {citations omitted}.

For minor children, clinicians should obtain written releases from the custodial parent or from both parents (in the case of married parents or joint legal custody) or law guardian, if one has been appointed by the court to represent the children's best interests.

Article 27-F of the New York Public Law provides a broad rule of confidentiality for HIV related information possessed by the health care provider. Under Article 27-F, even a patient’s general authorization for the release of medical information does not constitute a waiver of privilege of HIV related information.

However, Public Law §2785(2) provides an exception to the doctor patient privilege when a compelling need is shown for the disclosure of HIV related information about a patient. Plaza v. Estate of Wisser, 211 A.D.2d 111 (1st Dep’t 1995) (disclosure in such cases is in the public interest in stopping the spread of HIV). In Plaza, the plaintiff alleged his companion knowingly withheld knowledge of his HIV positive status at the time he had sex with the plaintiff and the records were required to show when the deceased would have known he had HIV.

1. For Psychiatrists: CPLR §4504

CPLR §4504 - psychiatrist: doctor-patient privilege states:

(a) Confidential information privileged. Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. The relationship of a physician and patient shall exist between a medical corporation, as defined in article forty-four of the public health law, a professional service corporation organized under article fifteen of the business corporation law to practice medicine, a university faculty practice corporation organized under section fourteen hundred twelve of the not-for-profit corporation law to practice medicine or dentistry, and the patients to whom they respectively render professional medical services.

A patient who, for the purpose of obtaining insurance benefits, authorizes the disclosure of any such privileged communication to any person shall not be deemed to have waived the privilege created by this subdivision:

1. “person” shall mean any individual, insurer or agent thereof, peer review committee, public or private corporation, political subdivision, government agency, department or bureau of the state, municipality, industry, co-partnership, association, firm, trust, estate or any other legal entity whatsoever; and

2. “insurance benefits” shall include payments under a self-insured plan.

(b) Identification by dentist; crime committed against patient under sixteen. A dentist shall be required to disclose information necessary for identification of a patient. A physician, dentist, podiatrist, chiropractor or nurse shall be required to disclose information indicating that a patient who is under the age of sixteen years has been the victim of a crime. (Emphasis added.)

(c) Mental or physical condition of deceased patient. A physician or nurse shall be required to disclose any information as to the mental or physical condition of a deceased patient privileged under subdivision (a), except information which would tend to disgrace the memory of the decedent, either in the absence of an objection by a party to the litigation or when the privileges has been waived:

1. by the personal representative, or the surviving spouse, or the next of kin of the decedent; or

2. in any litigation where the interests of the personal representative are deemed by the trial judge to be adverse to those of the estate of the decedent, by any party in interest; or

3. if the validity of the will of the decedent is in question, by the executor named in the will, or the surviving spouse or any heir-at-law or any of the next of kin or any other party in interest.

(d) Proof of negligence; unauthorized practice of medicine. In any action for damages for personal injuries or death against a person not authorized to practice medicine under article 131 of the education law for any act or acts constituting the practice of medicine, when such act or acts were competent producing proximate or contributing cause of such injuries or death, the fact that such person practiced medicine without being so authorized shall be deemed prima facie evidence of negligence.

2. For Psychologists: CPLR §4507

CPLR §4507 - psychologist: (same as attorney-client privilege) states:

The confidential relations and communications between a psychologist registered under the provisions of article one hundred fifty-three of the education law and his client are placed on the same basis as those provided by law between attorney and client, and nothing in such article shall be construed to require any such privileged communications to be disclosed.

[Same non-waiver due to disclosure for insurance benefits as in CPLR §4504(a)]

Psychologist-patent privilege is broader than the psychiatrist-patient privilege.

The confidential relations and communications between a psychologist and her client are placed on the same basis as those provided by law between an attorney and her client. Consequently, the psychologist-patient privilege is broader than the doctor-patient privilege. For example, the Court of Appeals in People v. Wilkens, 65 N.Y.2d 172, 490 N.Y.S.2d 759 (1985) held that CPLR §4507 invokes the same rules on waiver that apply under the attorney-client privilege. Since an attorney cannot be compelled to testify against a client who has given testimony in his own defense, a clinical psychologist could not be called as a witness to contradict the testimony of the defendant who had told the psychologist that his wounds had been self-inflicted but had testified that the stab wounds on his arms had been inflicted by the victim.

The Court of Appeals in Wilkens disavowed State of Flo. v. Axelson, 363 N.Y.S.2d 200 (1974) which held that the psychologist-patient privilege was not broader than the physician-patient privilege which is waived by a defendant who asserts the insanity defense thereby affirmatively putting his mental condition in controversy.

The Wilkins ruling produced an inconsistency in the law. In an insanity defense, the defendant’s communications with a psychologist remain protected, as psychologists-patient relationships are given the same privilege status under CPLR 4507 as that between a client and her attorney. However, the defendant’s communications with a psychiatrist, a physician whose communications fall under the CPLR 4504 doctor-patient privilege, are discoverable.

3. For Certified Social Worker: CPLR '4508

CPLR §4508 - social worker-client privilege, states:

(a) Confidential information privileged. A person duly registered as a certified social worker under the provisions of article one hundred fifty-four of the education law shall not be required to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment, nor shall any clerk, stenographer or other person working for the same employer as the certified social worker or for the certified social worker be allowed to disclose any such communication or advice given thereon; except

1. that a certified social worker may disclose such information as the client may authorize;

2. that a certified social worker shall not be required to treat as confidential a communication by a client which reveals the contemplation of a crime or harmful act;

3. where the client is a child under the age of sixteen and the information acquired by the certified social worker indicates that the client has been the victim or subject of a crime, the certified social worker may be required to testify fully in relation thereto upon any examination, trial, or other proceeding in which the commission of such crime is a subject of inquiry;

4. where the client waives the privilege by bringing charges against the certified social worker and such charges involve confidential communications between the client and certified social worker.

(b) Limitations on waiver. [Same non-waiver due to disclosure for insurance benefits as in CPLR §4504(a)]

· Must Be Certified

The Appellate Division reversed the Family Court ruling that a social worker’s notes were privileged reasoning that the privilege did not apply because the social worker was not certified. Shane "MM" v. Family and Children Services, 2001 N.Y. App. Div. LEXIS 1004 (3d Dep't 2001).

· Balancing of Interest Test

In Koretta W., 118 Misc.2d 660, 461 N.Y.S.2d 295 (N.Y.C. F. Ct. 1983), the judge in a juvenile delinquency proceeding involving arson held that the public interest in the care of the child outweighed the values served by the privilege under CPLR §4508. The Koretta court held that a juvenile's motion to supress inculpating communications made to social workers on grounds of social worker-client privilege would be denied, where the juvenile did not claim that such communications were involuntarily made. McKinney's CPL §710.20, subd. 3. The court reasoned that the statutory social worker-client privilege is not absolute but must be balanced against competing interests once invoked. Assuming arguendo that the juvenile was a client of the social workers, the juvenile's inculpating communications to such social workers were not protected by social worker-client privilege, inasmuch as injury to the social worker-client relationship was outweighed by the strong public interests in ascertaining the truth of the charges in the delinquency petition so that appropriate disposition could be fashioned and to aid in the proper functioning of the public child care system. McKinney's CPLR §4508.

The court in Koretta set forth the following criteria to determine whether the social worker-client privilege should prevent disclosure:

1. Communications must originate in the confidence that they will not be disclosed;

2. the element of confidentiality must be essential to the maintenance of the relationship between the parties;

3. the relation is one which in the opinion of the community ought to be fostered; and

4. the injury that would inure to the relationship as a result of disclosure must be greater than the benefit gained in regard to the correct disposal of litigation.

461 N.Y.S.2d at 207.

B. EXCEPTIONS AND WAIVERS TO CONFIDENTIALITY

1. Waiver of Privilege

· Patient or Client may waive privilege CPLR §4504 (a).

· In general, communications made in the known presence of third parties are not privileged. People v. Alaire, 148 A.D.2d 731, 737, 539 N.Y.S.2d 468, 474 (1989); Humphrey v. Norden, 359 N.Y.S.2d 733 (1974) (paternity admission to social worker in mother's presence not privileged).

· Waiver of physician-patient privilege may occur when the patient affirmatively puts his or her physical or mental condition in issue. In re Application of D’Agostino, M.D., 181 Misc.2d 710 (Sup. Ct. Richmond Co. 1999).

2. Statements Made In Contemplation Of a Harmful Act

· No privilege applies to the client's revelation of a future crime or harmful act.

· The principal exception to the nondisclosure rule dictated by the attorney-client privilege is when the attorney's services are sought to enable the client to commit a future crime. See McCormick on Evidence §95 (1992). But the ethical rules also recommend that the attorney provide information necessary to prevent a crime that can cause death or seriously bodily harm, even if the attorney's services are not sought for that purpose. See American Bar Association, Model Rules of Professional Conduct, Rule 1.6.

· No privilege applies to information about a client under 16 years who has been the victim of a crime.

3. Scope of Waiver

The court held in Farrow v. Allen, 194 A.D.2d 40, 608 N.Y.S.2d 1 (1st Dep't 1993), that a patient’s disclosure of a particular doctor-patient communication outside the context of litigation does not constitute a waiver of all other doctor-patient communications relating to the same subject matter. The Appellate Division held that the information contained in a letter from a psychiatrist addressed "To Whom It May Concern" and sent to the Yale/New Haven Sexual Abuse Clinic was no longer privileged, but rejected the argument that any broader waiver had occurred. The court held: “In determining the scope of a waiver effected by a patient’s disclosure, … there must be some consideration of the circumstances in which the disclosure took place and its impact on the opposing party.” 194 A.D.2d at 45, 608 N.Y.S.2d. at 4. The court explained that broad “subject matter” waiver normally is appropriate only when a privilege-holder affirmatively makes an issue of his or her medical condition in litigation to the possible prejudice of a party to that litigation. In such circumstances, fairness dictates disclosure of all related doctor-patient communications that are otherwise privileged so that a full picture of the matter can be obtained. The letter in Farrow was “completely extra-judicial and the information contained in it was not released in connection with the instant proceeding or any other litigated proceeding.” Id. at 46, 608 N.Y.S.2d at 4. Furthermore, no attempt had been made by anyone connected with the proceeding to affirmatively use the information in the letter against the petitioner in Farrow, who consequently did not have to defend against the information in the letter.

· Revocation of Waiver

Brandon A., 165 Misc.2d 736, 630 N.Y.S.2d 850 (1995). Parents in a permanent neglect proceeding agreed to a limited waiver of patient-physician privilege and related privileges, as applied to their substance abuse treatment records, where, as condition to prior suspended judgment order, they agreed that the Department of Social Services could have access to information "limited to evaluation, attendance, progress and recommendations.” However. the court held that their waiver was unenforceable after they revoked their consent.

4. Exceptions

· Guardianship Proceedings.

Article 81 of the Mental Hygiene Law governs proceedings for the appointment of a guardian for an incapacitated person. In an Article 81 proceeding, the court must appoint a “court evaluator” whose job is to gather information and report to the court to aid in a proper determination of the alleged incapacitated person's capacity. Mental Hygiene Law § 81.09(a)-(c). Pursuant to § 81.09(d), the court, after considering any objections by the alleged incapacitated person (§ 81.07(c)), may authorize the court evaluator to inspect the alleged incapacitated person's medical, psychological, and/or psychiatric records “notwithstanding the physician/patient privilege.”

In Matter of Goldfarb, 160 Misc.2d 1036, 612 N.Y.S.2d 788 (S. Ct. Suffolk Co. 1994), the court held that evidentiary use may be made of the records obtained by the court evaluator by virtue of the authority in § 81.09(d) for “such further disclosure of [medical] records as the court deems proper.” The only way for the alleged incapacitated person to avoid an implied waiver of the privilege, said the court, was to refrain from relying on any medical information in defense of the proceeding, object to the petitioner’s use of any privileged medical information and “put a petitioner to his or her burden of proof without the benefit of such medical proof.” 612 N.Y.S.d at 793. The privilege may still be lifted if the court orders disclosure pursuant to the exception contained in § 81.09(d).

· Communications Unrelated To Treatment

People v. Bowen, 229 A.D.2d 954, 645 N.Y.S.2d 381 (4 Dep't 1996), appeal denied, 88 N.Y.2d 1019, 156 N.Y.S.2d 136, 651 N.Y.S2d 18, 673 N.E.2d 1245. Driver’s spontaneous statements in a hospital emergency room that he had consumed six beers and that his blood-alcohol content was high were not protected by physician-patient privilege, even if trainee for position of emergency medical technician was authorized to practice medicine because the driver's statements were not made in response to questions, and there was no evidence that information communicated in them was necessary for his treatment.

People v. McHugh, 124 Misc.2d 823, 478 N.Y.S.2d 754 (1984). Defendant asserting the doctor-nurse or social worker privileges has the burden of establishing that the witness whose testimony is sought to be excluded acquired such information while attending to the defendant in a professional capacity, that the information was necessary to enable the witness to act in that capacity, and that the information was intended to be confidential.

· Third Person’s Presence During Examination

McDonald v. McDonald, 170 Misc.2d 211, 684 N.Y.S.2d 414 (1998). In a divorce action alleging that the wife’s allegedly fraudulent conduct in forging the husband’s signature on consent to use donor sperm and egg for in vitro fertilization constituted cruel and inhumane treatment, the wife did not waive her privilege because all communications between the wife and her physicians pertained to her condition and were necessary for her treatment, and the husband was never a patient of the doctors at the clinic.

People v. Sanders, 169 Misc.2d 813, 646 N.Y.S.2d 955 (1996). Doctor-patient privilege protecting the defendant’s admission during a psychiatric evaluation that he shot his wife was not destroyed by the presence of a police officer who was guarding defendant because the officer was required to remain with the defendant at all times.

· Marriage Counseling

Yaron v. Yaron, 83 Misc.2d 276, 372 N.Y.S.2d 518 (1975). Marriage counseling records not admissible in divorce proceeding absent spouses' specific waiver.

· Child Abuse and Neglect

Statutory exceptions to CPLR 4507 and 4508 exist in Family Court Act §1046(a)(vii) (no privilege in child abuse or neglect proceedings), and Social Services law §§413 & 415 (cases of suspected child abuse or maltreatment must be reported in writing and those reports are admissible in any child abuse or maltreatment proceeding)

§ 1046. Evidence.

(a) In any hearing under this article [i.e., child abuse or neglect proceedings]

(vii) neither the privilege attaching to confidential communications between the husband and wife, as set forth in section forty-five hundred two of the civil practice law and rules, nor the physician-patient and related privileges, as set forth in section fort-five hundred four of the civil practice law and rules, nor the psychologist-client privilege, as set forth in section forty-five hundred seven of the civil practice law and rules, nor the social worker-client privilege, as set forth in section forty-five hundred eight of the civil practice law and rules, nor the rape crisis counselor-client privilege, as set forth in section forty-five hundred ten of the civil practice law and rules, shall be a ground for excluding evidence which otherwise would be admissible.

Social Services Law §§413 and 415

Cases of suspected child abuse or maltreatment must be reported in writing and such written reports are admissible in any proceedings relating to child abuse or maltreatment.

People v. Tissois, 131 A.D.2d 612, 516 N.Y.S.2d 314, affirmed, 72 N.Y.2d 75, 531 N.Y.S.2d 228, 526 N.E.2d 1086 (1987). Trial court, after an in camera inspection, properly denied the defendant's request for access to notes made by a social worker after visits to children who were allegedly sexually abused by the defendant, because of the defendant's failure to make the requisite showing to overcome confidentiality of the social worker's records.

· Contested Child Custody

In Baecher v. Baecher, 58 A.D.2d 821, 396 N.Y.S.2d 447 (2d Dep't 1977), appeal denied 43 N.Y.2d 645 (1978), the court held that a parent waived his psychologist-patient privilege by putting his mental and emotional condition in controversy by contesting child custody in a matrimonial action.

In Perry v. Fiumano, 61 A.D.2d, 512, 518, 403 N.Y.S.2d 382, 386 (1978), the court held that in a child custody proceeding the parents' communications with a social worker may be subject to discovery upon a showing that disclosure of the information conveyed to the social worker is necessary to protect the health, safety and welfare of the child. However, there must first be a showing beyond conclusory statements that the resolution of custody requires the disclosure of the privileged communications.

· Court's In Camera Review

In Hickox v. Hickox, 410 N.Y.S.2d 81 (1st Dep't 1978), the Appellate Division held that: (1) grant of motion to quash supboena duces tecum obtained by father in child custody proceeding to require psychiatric clinic to produce mother's records prematurely limited power of court to make appropriate direction with respect to the use of the mother's records, and (2) records of psychiatric clinic relating to the mother for subject period, if they were to be disclosed in any degree pursuant to subpoena duces tecum obtained by the father, were to be submitted directly by the clinic to the court for examination by court and thereafter disclosed only in manner directed by the court and in light of circumstances then existing.

· A social worker's mental impressions, conclusions, or legal theories may be protected as material prepared for litigation

In Lenny, 183 A.D.2d 627, 584 N.Y.S.2d 17 (1st Dep't 1992), the court held that a social worker employed by a law guardian in a Family Court proceeding to determine custody in the best interest of an infant, is a "representative" of the infant for the purpose of this statute. The court recognized that although a more liberal approach to discovery may apply where a witness makes use of material to refresh recollection in the context of ordinary civil litigation (Doxtator v. Swarthout, 38 A.D.2d 782, 328 N.Y.S.2d 150; Stern v. Aetna Cas. & Sur. Co., 159 A.D.2d 1013, 552 N.Y.S.2d 730), the confidentiality and sensitivity of Family Court custodial litigation clearly call for stricter limitations. Thus, the court concluded that no further discovery from the social worker was warranted unless the law guardian sought to elicit her adverse opinion, as an expert, on the propriety of placement with the intervenor of the grandchild, whose care and custody was at issue. 

C. DISCLOSURE OF CLINICAL RECORDS LIMITED UNDER MENTAL HYGIENE LAW §33.13

In Dobies v. Brefka, 263 A.D.2d 721, 694 N.Y.S.2d 499 (3 Dept. 1999), the Court held that MHL §3.13 which prohibits disclosure of information contained in mental health records applies to mental health care facilities, and does not extend to private individuals who divulge such information, and thus the statute could not form the basis of a defamation action by a father against a mother and maternal grandparents based upon their publishing information from the father's mental health records.

In City of New York v. Bleuler Psychotherapy Center, Inc., 181 Misc.2d 994, 695 N.Y.S.2d 903 (1999), the court held that the Department of Mental Health, Mental Retardation and Alcoholism Services was entitled to an order directing the psychotherapy center to comply with the subpoena issued by the Department, by producing all documents regarding its treatment of the patient who allegedly caused the death of the third party by pushing her from subway platform. The court reasoned that disclosure was warranted because MHL §33.13 permits disclosure when the interests of justice significantly outweigh the need for confidentiality and the requested disclosure would permit the agency to perform its statutorily mandated duty to investigate whether the patient had received appropriate care and what steps could be taken to prevent similar incidents in future.

In Schwenk v. Kavanaugh, 4 F.Supp.2d 110 (1998), the court held that the actions of prosecutors in subpoenaing hospital psychiatric records relating to treatment of the defendant who was being prosecuted for burglary, violated the defendant's right to privacy under New York Mental Hygiene Law because the subpoena was issued and records produced without notifying the defendant or giving him an opportunity to object, and the records were improperly delivered directly to the prosecutors, instead of to the court.

In Ace v. State, 146 Misc.2d 954, 553 N.Y.S.2d 605, 607-08 (Ct. of Claims, 1990), the court held that the Wife waived confidentiality of her mental health records in custody proceeding. The court reasoned that: "A physician has a fiduciary duty not to reveal the confidences of his client, the breach of which is compensable in damages [citations omitted]. Similarly, pursuant to Mental Hygiene Law § 33.13, which creates a private cause of action [citations omitted], claimant's file at the Clinic was confidential [citations omitted]. The purpose of both the statutory protection and the common-law duty not to disclose is to encourage individuals to seek medical help by protecting their confidences [citations omitted]. Neither rule is absolute, however. Thus confidentiality must yield to disclosure in the face of a countervailing public interest such as where the patient is a danger to himself or others [citations omitted].

Similarly, Mental Hygiene Law § 33.13 specifically authorizes disclosure of psychiatric records upon a court order, and pursuant thereto, portions of a patient's clinical record may be delivered to other parties [citations omitted].”

D. As revised, MHL §22.05 no longer imposes an absolute prohibition on the use of facts relating to person’s participation in a substance abuse program in any court.

Matter of Maximo M, 186 Misc.2d 266 (F. Ct. Kings Co 2000) incorporated changes to MHL §22.05 to rule that MHL §22.05 no longer imposed an absolute prohibition on the disclosure of a person’s participation in a substance abuse program. MHL §22.05(a) [see below] was rewritten to allow disclosure in accordance with MHL §§33.13 and 33.16. MHL 22.05(b) allows disclosure in accordance with public health laws, state, federal laws, and court orders. The court in Matter of Maximo determined that MHL§33.13 allowed the court to order disclosure of participation in a substance abuse program where the court found the “interests of justice significantly outweigh the need for confidentiality”. Id. at 271. The court held that the correlation between drug abuse and child neglect was a compelling reason to require disclosure of drug program treatment records in child protective proceedings. Id. at 274.

§22.05 Patient's records

(a) After the admission of any patient, the director of a chemical dependence program or treatment facility shall, within five days excluding Sunday and holidays, forward to the office such information from the record in such time and manner as the commissioner shall require by regulation. Such information from the record in the office shall be accessible only in the manner set forth in sections 33.13 and 33.16 of this chapter.

(b) All records of identity, diagnosis, prognosis, or treatment in connection with a person's receipt of chemical dependence services shall be confidential and shall be released only in accordance with applicable provisions of the public health law, any other state law, federal law and duly executed court orders.

E. Mental Health Experts Appointed By The Court To Render Custody Evaluations

The Uniform Rules of the Supreme Court (22 NYCRR §202.18) provide that in an action or proceeding involving the custody or visitation of a child, the court may appoint a psychiatrist, psychologist, social worker or other appropriate expert to give testimony, the cost of which is to be paid by a party or parties as the court shall direct.

Family Court Act §251(a) provides that the court may order any person within its jurisdiction and the parent or other person legally responsible for the care of any child within its jurisdiction to be examined by a physician, psychiatrist or psychologist appointed to designated for that purpose by the court when such an examination will serve the purposes of the Family Court Act.

Can a law guardian waive the child’s privilege with his or her mental health provider?

Who should get a copy of the Custody Report?

Contact Me

If you think you may require the assistance of Kathleen Donelli in any matter, email (kdonelli@mccarthyfingar.com) or phone her (914-385-1010) with any question you may have.