STATE OF MICHIGAN

JENNIFER M. GRANHOLM, ATTORNEY GENERAL

Section 10 of the Child Custody Act of 1970 does not require disclosure of a minor's mental health services records to the child's noncustodial parent without the consent of the custodial parent required by section 748(6) of the Mental Health Code.

Opinion No. 7092

October 16, 2001

You have asked if section 10 of the Child Custody Act of 1970 requires disclosure of a minor's mental health services records to the child's noncustodial parent without the consent of the custodial parent required by section 748(6) of the Mental Health Code.

The Mental Health Code, 1974 PA 258, MCL 330.1001 et seq, provides for the creation and the confidentiality of mental health records. Section 746 requires that current records be maintained for recipients of mental health services and that their content "shall be confidential to the extent it is made confidential by section 748." Section 748(1) restates this confidentiality requirement and provides that information in a recipient's record may be disclosed "only in the circumstances and under the conditions set forth in this section or section 748a."¹

Section 748 of the Mental Health Code contains two subsections pertinent to your question. The first is subsection (5)(d), which provides that mental health services records shall be disclosed "[i]f necessary to comply with another provision of law." A study of the legislative history of this provision indicates that it was originally enacted in 1974 when the Mental Health Code was adopted, and although located under different subsections, its substance has remained unchanged.

The second subsection relevant to your question is subsection (6). This provision, added to the Mental Health Code by 1995 PA 290, governs disclosure of such records to the recipient or, in the case of a minor recipient, to the minor's parent or guardian. It provides that:

(6) Except as otherwise provided in subsection (4), if consent is obtained from the recipient, the recipient's guardian with authority to consent, the parent with legal custody of a minor recipient, or the court-appointed personal representative or executor of the estate of a deceased recipient, information made confidential by this section may be disclosed to all of the following:

(a) A provider of mental health services to the recipient.

(b) The recipient or his or her guardian or the parent of a minor recipient or another individual or agency unless in the written judgment of the holder the disclosure would be detrimental to the recipient or others. [Emphasis added.]

The second statute germane to your inquiry is the Child Custody Act of 1970 (Child Custody Act), 1970 PA 91, MCL 722.21 et seq. Section 10 of that Act provides that:

Notwithstanding any other provision of law, a parent shall not be denied access to records or information concerning his or her child because the parent is not the child's custodial parent, unless the parent is prohibited from having access to the records or information by a protective order. As used in this section, "records or information" includes, but is not limited to, medical, dental, and school records, day care provider's records, and notification of meetings regarding the child's education. [Emphasis added.]

A cardinal rule of statutory construction is to ascertain and give effect to the intent of the Legislature. Browder v Int'l Fidelity Ins Co, 413 Mich 603, 611; 321 NW2d 668 (1982). Meaning and effect must be given to every word and sentence of a statute, Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000), so as to produce, if possible, a harmonious result. Weems v Chrysler Corp, 448 Mich 679, 699-700; 533 NW2d 287 (1995).

In enacting section 748 of the Mental Health Code, the Legislature clearly expressed its concern over the especially sensitive nature of mental health records by placing stringent restrictions on the dissemination of information contained in those records. Even when the disclosure is sought by the patient, or by a parent or guardian on behalf of a minor patient, the Legislature has seen fit to impose restrictions on disclosure including a provision that the holder of the record may withhold the information if, in the holder's judgment, disclosure "would be detrimental to the recipient or others." Mental Health Code, section 748(6)(b). Significantly, this restriction appears only in subsection (6) of section 748, and not in subsection (5)(d). Thus, if section 10 of the Child Custody Act were to be read as a law requiring disclosure of a child's mental health records to a noncustodial parent, an anomalous result would occur: while the custodial parent would be able to obtain those records only pursuant to section 748(6) of the Mental Health Code, subject to the specific restrictions contained in that provision, the noncustodial parent would be able to obtain the records pursuant to section 748(5), relying on section 10 of the Child Custody Act, without regard to those restrictions. As a result, unless the noncustodial parent were subject to a protective order, as provided in section 10 of the Child Custody Act, he or she would be able to obtain the child's mental health records even if the holder of the records determined that the release would be detrimental to the child or to others under section 748(6)(b) of the Mental Health Code. The noncustodial parent, thus, would possess a greater right of access to the minor's mental health records than the custodial parent. It is unlikely, however, that the Legislature intended this result.

Nor does the plain language of section 10 of the Child Custody Act require such a result. By its plain terms, section 10 prohibits the holder of a minor's health care records from using a parent's lack of custody as a basis for denying access to such records. Nothing in section 10 prohibits the use of other lawful reasons for withholding such records and, more importantly, nothing in that section authorizes or compels the disclosure of records that are otherwise protected from disclosure. In other words, if a parent is entitled to have access to a minor's particular record, section 10 prohibits the holder of that record from denying that access based solely on the parent's lack of custody; it does not, however, create a right of access where no such right would otherwise exist.

As is noted above, section 748 of the Mental Health Code expressly prohibits disclosure of mental health records except as specifically authorized in that section. Disclosure may be made to a parent, including a noncustodial parent, only if (i) consent is obtained from the minor child's custodial parent, and (ii) the record holder does not determine in writing that disclosure would be detrimental to the recipient or others. Under the express terms of section 748(6), disclosure is strictly prohibited if either of these conditions is not met. Moreover, a denial of access based on either of these conditions is not a denial based solely on lack of custody within the meaning of section 10 of the Child Custody Act. To the contrary, even if disclosure is refused due to the lack or refusal of consent by the custodial parent, that denial is predicated on the failure to obtain the legislatively mandated consent of the child's custodial parent, not strictly or solely upon the requesting parent's lack of custody.

If the Legislature concludes that the noncustodial parent of a minor should be afforded a greater degree of access to the minor's mental health records, it may, of course, accomplish this by amending section 748(6) of the Mental Health Code.

It is my opinion, therefore, that section 10 of the Child Custody Act does not require disclosure of a minor's mental health services records to the child's noncustodial parent without the consent of the custodial parent required by section 748(6) of the Mental Health Code.

JENNIFER M.GRANHOLM
Attorney General