Forensic Corner; Releasing Information
Lee H. Haller, M.D.
I recently read an appellate court decision that struck
me as worthy of your attention. The issue involved psychiatric
records and the ruling demonstrated great wisdom.
The case was a CINA (Child In Need of Assistance) proceeding
which involved a mother and her son. The son had been
placed in a foster home due to his mother's alleged
mental health problems. In response to the allegation
by the State that she was mentally unfit, the mother
produced a letter from her treating psychiatrist that
briefly described her condition, the diagnoses, and
the treatment that was being provided. This letter was
presented in order to rebut the allegation by the State.
The trial court judge wanted more information. He therefore
ordered the mother to sign a release of information
to be sent to each of the mental health professionals
who had treated her in the past, directing them to provide
the court with records of her treatment. The mother
objected to this judicial order and appealed her case.
The Court of Special Appeals of Maryland ruled that
the order of the trial court judge was improper, stating
that there was a limit to how far the court could go
in trying to obtain information. The psychotherapist-patient
privilege could not be violated by judicial order for
this purpose. The Appellate Court provided a lengthy
discussion of the need to balance the State's desire
for information to protect the child vs. the parent's/patient's
right to privacy.
This case raises an interesting question: What would
you do as a private practitioner if you were to receive
a release from a former patient giving you permission
to forward information to a court? Suppose the mother
in this case had not appealed the order of the child
court judge. How would you have responded? If you simply
respond to the release of information request, you may
not be acting in the best interest of your patient.
My point here is that we all receive requests for information
on a regular and routine basis. I am not speaking of
situations such as child abuse and neglect, or a potentially
dangerous patient who threatens harm to another, where
physicians are required by law to volunteer information.
I'm speaking of almost all other cases, where it will
be in our patients' best interest for us to provide
some information. However, it is not uncommon for us
to receive requests for the entire patient record when
the information that is actually necessary is much more
limited. Occasionally, there will be instances in which
it is not in the patients' best interest to have any
information released at all.
I suggest to you that the wisest course of action is
to contact the patient (or legal guardian when the patient
is below the age of consent) before releasing any information.
This insures that the patient knows you have received
a release and intend to respond. It is possible that
the patient may not know that you have been contacted
or may have forgotten what transpired during your treatment.
Therefore, it is important that you find out what information
the patient thinks the requesting source wants from
you, and the purpose for which the information will
be used. This gives you the opportunity to review the
information you have and determine if it will be potentially
harmful to the patient. If so, it is advisable to discuss
this with the patient/guardian before releasing the
information. By notifying the person, you thereby give
him/her the option of canceling the request or taking
other steps to limit what you divulge. In some instances,
such as the case with a court order, the patient does
not have control over the information. However, the
patient's attorney may be able to block the release
of the information. Initiating such an action is generally
up to the patient and his or her attorney, not you.
Your job is to provide the information requested, pursuant
to a valid release of information, remembering that
your job as a physician is to do no harm, if at all
possible.
When you do release information, it is important to
know what the requesting party wants, and why. If you
send additional extraneous information that causes subsequent
damage to the patient, you could be sued for improper
release of the information because the patient had assumed
that you would release only the necessary information,
not volunteering beyond that which was required. To
omit information so as to be intentionally misleading
is not appropriate either. You must walk a fine line.
Finally, when releasing information to another source,
do not send records that you have received from other
treatment providers unless you are given a specific
authorization to do so. The records you send should
be strictly your own. In short, when you respond to
a request to release patient information, do your best
to assure that your response does not harm your patient.
Dr. Haller is in the private practice of forensic psychiatry
in Potomac, Maryland
AACAP
News/November-December 1999 |
