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MICHIGAN
MENTAL HEALTH CONFIDENTIALITY
I. CONFIDENTIALITY REQUIREMENTS 1. MCL 600.2157
- Grants confidentiality protection to all records and information
relating to health care.
2. MCL 330.1750 - Makes the communications from the patient in regard to care privileged. a. “Privileged
Communication” means a communication made to a psychiatrist or
psychologist in connection with the examination diagnosis, or treatment
of a patient, or to another person while the other person is
participating in the examination, diagnosis, or treatment or a
communication made privileged under other applicable state or federal
law. Reference: MCL 330.1700(h)
3. MCL 330.1748 - Grants confidentiality protection to all information acquired during provision of mental health services. a. Problem:
What is “information” and what is “privileged communication”?
b. Answer: It doesn’t matter, as long as your facility/office handles this consistently. II. CONFIDENTIALITY EXCEPTIONS 1. Patient’s
consent (or legal guardian, if patient is not competent).
a. Can release
both “information” and “privileged communications.”
b. A patient has an absolute right to review their own record IF: i. The patient
is an adult
ii. The patient does not have a legal guardian c. If requested by a patient, the record-holder has either 30 days, or, if the patient is receiving treatment from the record-holder, when the patient is released from treatment, whichever is earlier. i.
Problem: What if you really don’t think the patient should
see the record?
ii. Answer: Take your time. Does a “duty to warn” arise? 2. Patient consent is required for disclosure to other mental health providers. a. If the
records are to go to another provider, the entire record must be
released, according to Michigan law.
i. HIPAA says
only send the “minimum necessary” to accomplish the purpose
ii. HIPAA applies – not Michigan law – because HIPAA provides more protection to patient A. Although,
this is arguable since looking at it from the issue of what is best for
patient care, disclosure of full chart may be better for patient.
b. This means if it is to go to a different facility or office. Within the same facility or office, where providers work together as part of the same “team,” then no additional consent is required. i. A different
clinic within the same system or corporation is not the same office and
additional consent is required.
3. No consent is needed to disclose information where “there is a compelling need for disclosure based upon a substantial probability of harm to the recipient or other persons.” III. DUTY TO WARN 1. If a patient
communicates to a mental health professional who is treating the
patient, a threat of physical violence against a reasonably
identifiable third person and the recipient has the apparent intent and
ability to carry out that threat in the foreseeable future, there is a
duty to take action
2. Components of this duty: a. A patient
b. Communicates to mental health professional i. This would include staff working under that professional c. A threat of physical violence d. A reasonably identifiable third person e. Apparent intent and ability to carry out 3. What Must Be Done? a. Must act in
a timely manner
b. Hospitalize the patient or start hospitalization proceedings c. Make a reasonable attempt to communicate threat to the third person AND communicate the threat to local law enforcement d. If threatened person is a minor or incompetent, then must also notify FIA AND parent, legal guardian, or whoever is appropriate under the circumstance 4. Immunity – MCL 330.1946(4) provides that, as long as the attempt to act according to this statue is done in good faith, there will be no liability, as long as the statute is complied with. IV. REPORTS OF SUSPECTED CRIMINAL ABUSE 1. Persons
required to report - Any mental health professional or person working
at a facility or program.
2. A report may be made by any other person 3. Reasonable cause to suspect "criminal abuse" of a recipient or resident. a.
Note: There is no duty to report "abuse," only
"criminal abuse."
4. "Abuse" is
nonaccidental physical or emotional harm, or sexual contact or
penetration by an employee or volunteer.
5. “Criminal abuse” includes: a. An assault
and battery, but not if committed by one recipient against another.
b. Homicide c. Criminal sexual conduct, including any attempt or conspiracy d. Vulnerable adult abuse e. Child abuse 6. Duty to Report a. Immediately
make an oral report to the police; within 72 hours, file a written
report
b. Written report must contain:
1. Name of recipient
2. Description of criminal abuse and manner in which it occurred Note: The report shall be made a part of the recipient’s record. c. The identity
of the person making report must be kept confidential and disclosed
only with consent or by judicial process
d. Civil and criminal immunity for persons acting in good faith 7. No duty to report if a. The person
knows that the incident has been reported to the police, or the
incident occurred more than one year ago
8. No requirement to disclose confidential information or a privileged communication except under one or both of the following circumstances: a. Suspected
criminal abuse committed by a mental health professional, person
employed by or under contract to the Department, a facility or
community mental health board, or a person employed by an entity under
contract to any of the above
b. The suspected criminal abuse was committed in certain locations, such as a facility, a county community mental health program site, or at a contractor's treatment site 9. "Whistleblower" protection to anyone who makes a good faith report against an employer or contractor. V. MINORS 1. Under
Michigan law, minors 14 and older may seek mental health care mental
health care without parental consent.
a. Limited to
out-patient therapy – 12 sessions or 4 month max.
b. Services are to not undermine relationship with parents and “shall not undermine the values the parents have sought to instill.” Reference: MCL §330.1707 2. Michgan law
does not state who can release the records.
a. Implication
of Michigan law is that minor is to provide release for care sought
under this statute
b. But if minor receives treatment where parent was involved in care, then parent gives release. c. HIPAA does not address this. VI. COURT ORDERS AND SUBPOENAS This entire area is very
difficult to work out and contacting a lawyer is advisable.
IF MORE THAN ONE SET OF RULES
APPLY TO THE RECORDS, THEN EACH APPLICABLE STATUTES MUST APPLY.
For instance, if these are mental
health records that also mention HIV/AIDS, then the rules for handling
subpoenas for mental health records AND HIV/AIDS must be satisfied.
If mental health information is
being subpoenaed, the rules are different than with AIDS/Substance
Abuse.
a. Subpoenas
and court orders cannot be used to obtain “privileged communications.”
i. However, as
to “privileged communications,” if there is no authorization, then the
court cannot order or subpoena the disclosure of the records.
b. According to
Michigan law, if there is a subpoena or court order for “information,”
then no consent or court order is required -- a subpoena by itself is
sufficient.
But, HIPAA provides greater
protection since its rules are similar to those for HIV/AIDS and
Substance Abuse
c. WHAT TO DO?
i. If there
are mental health records, no privileged communications can be released
unless there is a patient’s signed release
A. Remember,
you should not contact the patient to get the signature, let the
attorneys do that.
ii. As to
information, that should only be release if there is a signed release
or a court order, following the rules like HIV/AIDS and Substance abuse.
VII. PSYCHOTHERAPY NOTES 1.
Psychotherapy notes are defined as:
a.Notes recorded by a mental
health professional documenting or analyzing the contents of
conversation during a counseling session (private, group, joint or
family); and
b. That are separated from the rest of the individual's medical record. 2. Psychotherapy notes do not include: medical prescription, counseling start 'and stop times, modalities and frequency of treatment, results of clinical tests and a summary of diagnosis, functional status, the treatment plan, symptoms, prognosis and progress to date. 3. Covered
entities must obtain an authorization (and not just consent) for any
use or disclosure to psychotherapy notes. An authorization to release
psychotherapy notes may not be combined with authorizations for other
information.
4.
Authorization to use or disclose psychotherapy notes is not
required in the following limited circumstances:
a. To carry out
treatment by the person who originated the note if patient consent was
obtained;
b. Use or disclosure in training programs for students in mental health who are learning under supervision to improve their counseling skills; c. Use to defend a legal action brought by the individual; or d. Use or disclosure required by DHHS or by law for oversight purposes of the originator of the notes - such as to the state licensing board. 5. Health care
providers may condition treatment on the patient's consent, including
consent to release psychotherapy notes. However, health plans may not
condition eligibility for enrollment on the patient's authorization to
release psychotherapy notes.
6. Patients do not have a right of access to inspect or copy psychotherapy notes.  |