5029.02
The purpose of this publication is to tell you about your legal rights regarding the confidentiality of your mental health records.
Generally, if you receive mental health services under the Lanterman-Petris-Short Act (you are involuntarily or voluntarily treated in a state hospital, state developmental center, county psychiatric hospital, private institution, hospital, or clinic, or receive services under a community mental health treatment program), all information about the services you receive is confidential and cannot be released without your authorization. However, there are situations when your records can be released without your authorization. This publication discusses some of these situations. However, this publication only provides basic legal information. Confidentiality of records is a complex area of law. Contact one of the numbers at the bottom of this publication or an attorney for information about your specific questions or situation.
Whether you are or were a voluntary or involuntary patient, your mental health records are confidential. This means all information obtained in the course of your mental health services or treatment is not to be shared by anyone, except in the situations listed below.
1.
When
you designate that your records be shared with others. The doctor, psychologist, social worker, or
licensed marriage and family therapist in charge
of your care must approve. Professional
staff cannot be forced to reveal information that was given to them in
confidence by members of your family.
2.
In
communication between a qualified professional person (a staff person at a
facility) to another professional (outside the facility) who does not have
responsibility for your care.
3.
To
your attorney, except for information given in confidence to professional
persons and staff by members of your family.
4.
To
a county patients’ rights advocate providing services
to you.
5.
To
an insurer if you apply for life or disability insurance.
6.
A
24 hour facility must make reasonable efforts to notify your designated family
member(s) or another person of your admission.
Unless you ask that this information not be provided. Upon request, the facility must also give to
your designated family member(s) or another person
information about your diagnosis, prognosis, medications, progress, release,
transfer, serious illness, or death. But
only after telling you such information has been requested and only if you
authorize the release. Specific rules
apply if you are unable to give authorization.
Also, the facility must tell you of your right to keep this information
confidential.
7.
If
you have been convicted of a crime, information may be released to the
probation officer who is evaluating you.
But only if the facility you were in thinks the information is relevant,
and only if you agree in writing. The
information can be released only until you have been sentenced for the
crime. After that, it must be kept
confidential. The information released
must be kept separate from your probation report. Also, information given in confidence by your
family members must be kept confidential.
8.
To
a government law enforcement agency investigating a crime if the records relate
to you and you are confined under certain penal commitment categories.
9.
To
a qualified physician or psychiatrist representing an employer when the
information is required for an employment application. Unless the person responsible for your care
thinks the release would not be in your best interest.
10. To you or your authorized representative if you are appealing a benefits decision.
11. Between county agencies if you are an older adult and in the opinion of a multidisciplinary team there are signs of elder abuse/neglect. The disclosure must not include information about treatment or services provided. Welf. & Inst. Code §5328.05.
12.
To a qualified
professional who is providing genetic counseling to you or a member of your
family.
1.
If you are a minor, ward, or conservatee and your
parent, guardian, guardian ad litem, or conservator consents in writing. However, professional persons and staff
cannot be forced to reveal information that was given to them in confidence by
members of your family.
2.
A
requesting family member may be told of your presence in a facility if you are
unable to authorize such a release of information (unless prohibited by federal
law).
3.
Information
may be released to prevent, investigate, or treat child, elder, and dependent
adult abuse. Disorders involving lapses
of consciousness may also be released.
Only required, relevant information may be released. Full access to your records is not
authorized.
4.
Between
people on a “multidisciplinary personnel” team if the information is relevant
to the prevention, identification, management, or treatment of an abused child
or his or her parents, an abused elder, or abused dependent adult.
5.
When
your psychotherapist thinks you are a serious danger of violence to a
reasonably foreseeable victim(s), information may be released to the possible
victim(s) and to law enforcement.
6.
Information
about denial of rights (but not your identity) must be released to your
conservator or guardian, the local mental health director, the state
legislature, the Office of Patient’s Rights, or county patient’s rights
advocates if they request it.
7.
Under
certain circumstances, information must be released to PAI for the protection
and advocacy of the rights of individuals identified as mentally ill.
8.
In
the course of conservatorship proceedings.
9.
Treatment
facilities must release your information to county officers if the release will
help a conservatorship investigation.
10.
Under limited
circumstances, if you are released from a 72 hour hold (5150) or a 14 day
treatment hold (5250) and a request has been made for notification of your
release by law enforcement who placed you on the
hold.
11.
In some
circumstances, limited information must be released to law enforcement if you
are an involuntary patient or under a penal code commitment in a facility and
are being moved, are under criminal investigation, or escaped from the
hospital.
12.
If you are an
involuntary patient and “gravely disabled,” information may be released if you
disappear from your facility or are transferred between state hospitals.
13.
In communications
between qualified professionals regarding services or appropriate referrals if
the professionals work in the same facility or have responsibility for your
care.
14.
When a law
enforcement officer personally lodges an arrest warrant showing you are wanted
for a serious or violent felony, the facility must inform the officer if you
are in the facility.
15.
Information may
be released to law enforcement if you are a “mentally disordered or
developmentally disabled person” and someone believes you are a crime
victim.
16.
To a government
law enforcement agency if your facility or physician has probable cause to
believe that you have committed, or have been the victim of, a crime while
hospitalized. Release depends on the
level of the crime involved. It must be
limited to the facts of the crime. It
must not relate to your mental state, admission, commitment, or treatment.
17.
Certain inpatient
facilities must provide you and your legal representative (or other person you
designate) aftercare plan information when you are discharged from the
facility.
18.
To process a
claim for aid, insurance, or medical assistance, but only to the extent
necessary.
19.
To the courts, as
necessary for the administration of justice.
20.
To the Youth
Authority and Adult Correctional Agency as necessary for the administration of
justice.
21.
To law
enforcement agencies to protect federal and state elective constitutional
officers and their families.
22.
To the Senate or
Assembly Rules Committees for legislative investigation.
23.
To a quality
assurance committee established in compliance with Cal. Welf.
& Inst. Code §4070 and 5624.
24.
To a licensing
board for mental health professionals when the Department of Mental Health
reasonably believes a licensing violation has occurred. The records must be relevant. They cannot include your name and must be
sealed after the board makes a decision.
25.
For research, if
the Director of Mental Health sets rules for the research and it is reviewed by
the appropriate board. Researchers must
first try to get your informed consent.
Also, they must agree not to release your information to unauthorized
persons and must keep your identity private in publishing research
findings.
26.
To licensing
personnel (with the Department of Health Services or the Department of Social
Services) regarding licensing and inspection of facilities. The information can be used in certain
hearings and judicial proceedings. The
information can only be released to the parties and must be kept private when
the matter is over.
27.
To the Director
of Mental Health for statistical data.
28.
Information about
your treatment must be released to the coroner if you die in a state
hospital. The information should be kept
private and not made public. It should
not include information about your personal life.
29.
To a domestic
violence death review team.
30.
To an elder death
review team.
31.
To the
“designated officer” of an “emergency response employee” (see the Ryan White
Comprehensive AIDS Resources Emergency Act of 1990) or from the designated
officer to an emergency response employee, regarding possible exposure to HIV
or AIDS. But only if necessary to comply
with the Ryan White Act.
32.
To the Secretary
of Health and Human Services when required to determine compliance with the
Health Insurance Portability and Accountability Act (HIPAA). 45 C.F.R. 164.502(a)(2).
Generally, there must be a form signed by you (or your parent, guardian, or conservator) each time information is released. It must be written in plain language. It must include: the specific information to be released, the name of the agency or individual to whom information may be released, the name of the agency or person authorized to release, the purpose, and a valid expiration date. Also, there must be statements, among others, that tell you about your right to revoke the authorization and your right to a copy of the authorization. You should receive a copy of the form. It needs to be kept in your medical record.
Yes. With some
exceptions, psychotherapy notes can only be released if you specifically
authorize it in a separate form.
The facility must make a written entry in your medical
record, with the date and circumstances that they provided the information, the
names and relationships to you of the person or agency that received the
information, and the information provided.
A copy must be given to you. Cal.
Welf. & Inst. Code §5328.6.
You may bring a civil action against a person who
willfully and knowingly releases your confidential information. The penalty is $10,000 or three times your
actual damages, whichever is greater.
You may also bring a civil action against a person who negligently
releases your confidential information.
The penalty for that is $1,000 and the amount
of your actual damages. Finally, you may
bring an action to stop someone from releasing your information. In all cases, you may be entitled to your
court costs and reasonable attorney’s fees.
You may also file a complaint under HIPAA. A provider may be fined $100 for each violation and up to $25,000 for repeated, identical violations in one year. Some exceptions apply. Also, a person may be punished criminally for knowing violations. Criminal liability may be from $50,000 and one year of imprisonment to $250,000 and ten years of imprisonment, depending on the violation.
Note: there is no liability for damages for information released under Cal. Welf. & Inst. Code §5328.1 (see paragraphs B(6) and C(2) above).
If you have any questions, contact your
Protection & Advocacy, Inc. (PAI)
Toll Free
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