**** The information written here is not legal advice and the author of this blog is not your lawyer. These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****
There is not an automatic assumption that the police are entitled to your mental health records simply because it was they who got you to the hospital. Mental health records, like all medical records, are private[i] and are only supposed to be used as evidence in a court case with the patient’s express permission. However, the USA PATRIOT Act and The Health Insurance Portability and Accountability Act (HIPAA) both provide legal ways for law enforcement agencies to obtain people’s medical records.
HIPAA is the law that protects the content of medical records from being used for anything other than the patient’s medical care. However that law does allow medical offices to give private medical records to courts “in response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or (ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal.”[ii]
This second section, about subpoenas, specifically allows courts to get medical records directly from health providers without the patient’s permission when the subpoena has been sent to the patient’s last known address.[iii] Obviously, this means that homeless people who do not have a current address on file with their doctor’s office can find that their medical records were admitted into court without their knowledge. HIPAA also allows law enforcement officers (police and the FBI) to get medical records without a patient’s permission when investigating: the identity of a dead body that might be the patient, the identity of a fugitive, or a crime against the patient.[iv]
The USA PATRIOT Act allows the FBI to “make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities…”[v]
Medical records are specifically mentioned in a later section specifying that only the Director or Deputy Director of the FBI or the Executive Assistant Director of National Security can use this law to request a warrant for medical records.[vi]
Even though this question is about how police and prosecutors might obtain medical records to use in bringing criminal charges or proving someone’s guilt in a crime, this is a good place to mention how and when medical records might be used in a civil case in which a homeless person might be suing for a breach of contract or some consumer right. There is no need to worry about the possibility that a civil court opponent will be able to claim “he didn’t pay the rent because he’s crazy” “he’s accusing me of negligence because he’s depressed” or anything like that. There are two protections that keep that kind of remark from getting into court documents or testimony.
First of all, the evidence rules require that only relevant information be presented in a case.[vii] Medical records are relevant in disability claims and medical malpractice claims. In those cases, the medical records are offered as evidence by the patient not the opponent in the case. They are not used to support an accusation against a sick person; they are presented as proof of the patient’s own claim for his rights. In cases about not paying debts or not fulfilling a duty, the health of neither the debtor nor the creditor has anything to do with whether a legal right was violated. The medical records would be irrelevant in relation to those types of legal controversies.
Privacy is the second legal protection against having medical records used as evidence. The medical community has a serious professional obligation to keep those records secret. The few court-related exceptions to that obligation involve limited police investigations, as described in the previous section. As a professional obligation, the rule about privacy in patient records comes not only from the law,[viii] but also from the canons of professional ethics for medical professionals. A doctor or nurse or other licensed medical professional who releases patient information despite the ethics rules can lose his license to practice in that profession.[ix] If you believe this has happened to you, contact your state’s professional licensure office for a complaint form.[x]
[i] On its Web site http://www.hhs.gov/ocr/hipaa/, the U.S. Department of Health and Human Services provides thorough and clear information about the legal obligation to keep medical records private. That site has the full-text of the HIPAA statute enacted by Congress as well as the Health and Human Services regulations detailing how that statute is to be carried out. The site also has questions and answers in plain English and a complaint form that patients can file with the Department if HHS if a doctor’s office releases medical records in violation of the law.
[ii] 45 C.F.R. §164.512(e)(updated through August 2006).
[iii] Id. at § 164.512(e)(iii)(1)(a).
[iv] 45 CFR §164.512(f) (updated through August 2006). This can be a way of assuring that scientific evidence is collected and preserved for trial. A comparable situation has been in state laws for many years allowing hospital emergency rooms to collect hair and fluid samples from rape victims and give them immediately and directly to police investigating the rape.
[v] 50 USC § 1861(a)(1) (as of August 2006).
[vi] Id. at § 1861(a)(3).
[vii] Rule 402 of the Federal Rules of Evidence states that, “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.” State court systems have their own rules of evidence; all of them model their rule about relevance closely to the federal rule.
[viii] As noted several footnotes ago, the HIPAA statute written by Congress and the regulations written by the Department of Health and Human Services about keeping medical records private are all available for free on the Internet at http://www.hhs.gov/ocr/hipaa/ along with frequently asked questions, clear fact sheets, and a complaint form to file with HHS if a doctor’s office improperly reveals medical record content.
[ix] The American Medical Association has the Principles of Medical Ethics online at http://www.ama-assn.org/ama/pub/category/2498.html. Principle IV is about patient privacy. The American Nursing Association has the nurses’ Code of Ethics at http://www.nursingworld.org/ethics/ecode.htm. A particular hospital’s code of ethics will usually be available from its patient relations or quality control office. The American Hospital Association has explanatory issues pages, including HIPAA as an issue, at http://www.aha.org/aha/issues/index.html.
[x] Professional licenses might be granted by any number of agencies or departments in each state. Look for “medical licensing” in your state government’s home page http://www.state.al.us/ (substitute your state’s two initials for AL) or ask a librarian how to file a licensure complaint against a particular type of professional in your state.