Opinion #6764

The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)

STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6764

August 11, 1993

DEPARTMENT OF MENTAL HEALTH:

Access of patients to own records

The Legislature has not specified in the Mental Health Code which professional licenses qualify persons to make the judgment to withhold information as detrimental to the recipient or others.

The judgment to withhold information because its release would be detrimental to the recipient or others must be recorded in the file of the recipient of mental health services.

A decision to withhold mental health records may be appealed to the Director of the Department of Mental Health, and the Director's decision may be reviewed by the courts.

The holder of mental health records must adopt policies and procedures governing the mechanics of the release of records but may not attach additional conditions not authorized by section 748 of the Mental Health Code.

A recipient of mental health services may not be required to agree to hold the record holder harmless as a condition of disclosure of information in the recipient's mental health record.

Honorable Clark Harder

State Representative

The Capitol

Lansing, MI

You have asked several questions relating to access by mental health services recipients to their mental health records under the provisions of section 748(5)(b) of the Mental Health Code. Your questions may be summarized as follows:

1. Which professional licenses qualify persons to make the judgment to withhold information as detrimental to the recipient or others?

2. If information in a mental health record is withheld because its release would be detrimental to the recipient or others, where must that judgment be recorded?

3. If information in a mental health record is withheld, does the recipient have any redress?

4. May the holder of the mental health records determine the policies and procedures under which the records will be released?

5. May the recipient be required to agree to hold the record holder harmless as a condition of disclosure of information in the recipient's mental health record?

Section 748 of the Mental Health Code, 1974 PA 258, MCL 330.1001 et seq; MSA 14.800(1) et seq, provides, in pertinent part:

(1) Information in the record of a recipient, and other information acquired in the course of providing mental health services to a recipient, shall be kept confidential and shall not be open to public inspection. The information may be disclosed outside the department, county community mental health program, or licensed private facility, whichever is the holder of the record, only in the circumstances and under the conditions set forth in this section.

(5) Information made confidential by this section may be disclosed if the holder of the record and the recipient, the parents of the recipient if the recipient is less than 18 years of age, or the recipient's legally appointed guardian consent:

(b) To the recipient or any other person or agency, provided that in the judgment of the holder, the disclosure would not be detrimental to the recipient or others. [ Emphasis added.]

Pertinent rules adopted by the Department of Mental Health, pursuant to its rule-making authority, provide:

(6) The holder of a record shall not decline to disclose information if a recipient or other empowered representative has consented, except for a documented reason. If a holder declines to disclose because of possible detriment to the recipient or others, there shall be a determination whether part of the information can be released without detriment. A determination of detriment shall not control if the benefit of the disclosure to the recipient outweighs the detriment. A decision not to disclose may be appealed to the director of the department by the person seeking disclosure, a recipient, legally empowered guardian, or parents of a minor consents to disclosure.

1990 AACS, R 330.7051(6).

Your first question asks what professional licenses qualify persons to make the decision to withhold information as detrimental to the recipient or others. In section 748(5)(b) of the Mental Health Code, MCL 330.1748(5)(b); MSA 14.800(748)(5)(b), the Legislature has placed the decision to withhold information in a mental health record in the holder of the record. Pursuant to section 748(1) of the same statute, the holder of the record may be the Department of Mental Health, a community mental health program, or a licensed private facility.

OAG, 1977-1978, No 5125, p 454, 457-458, (May 30, 1978), delineated and affirmed the right of access which health care patients have to their medical records maintained by a physician or hospital. It noted, however, that section 748(5)(b) of the Mental Health Code was a constitutionally valid exception to that right in respect to mental patients:

Thus, it is my opinion that 1974 PA 258, supra, Sec. 748 of the Mental Health Code is constitutional in granting to the record holder the discretion to withhold information when in his judgement disclosure would be detrimental. This decision must not be arbitrary or capricious, however, and must be based on a medical judgement made in good faith and in the patient's best interest. Further, such medical judgement should be appropriately recorded.

While the foregoing opinion refers to the exercise of a "medical" judgment in making the determination to withhold records from a mental patient, it should be noted that the opinion dealt only with patient records maintained by physicians and hospitals. The Legislature has not specified in the Mental Health Code which licenses qualify persons to make the judgment to withhold information as detrimental to the recipient or others. In the absence of legislative guidance, it is up to the record holders to determine which persons may make this judgment. This office has been advised that, in the state mental institutions run by the Department of Mental Health, the Department's decision is based upon the recommendation of the treating psychiatrist.

It is my opinion, therefore, in answer to your first question, that the Legislature has not specified in the Mental Health Code which professional licenses qualify persons to make the judgment to withhold information as detrimental to the recipient or others.

Your second question is where must the judgment to withhold information be recorded. Pursuant to 1990 AACS, R 330.7051(6), information may be withheld only "for a documented reason." Although neither the statute nor the rules specifically provide where this documentation is to be kept, 1990 AACS, R 330.7051(2) and (3) require that a summary of section 748 of the Mental Health Code be kept in each recipient's file and that a record be kept of each disclosure. Therefore, the judgment to withhold disclosure must likewise be recorded in the file of the recipient of mental health services so that the judgment may be reviewed by the appropriate administrative or judicial authority upon request.

It is my opinion, therefore, in answer to your second question, that a judgment to withhold information because its release would be detrimental to the recipient or others must be recorded in the file of the recipient of mental health services.

Your third question is whether there is any redress if mental health records are withheld under section 748(5)(b) of the Mental Health Code. 1990 AACS, R 330.7051(6) provides that "[a] decision not to disclose may be appealed to the director of the department by the person seeking disclosure, a recipient, a legally empowered guardian, or parents of a minor who consents to disclosure." The Director of the Department of Mental Health is not required to be either a licensed psychiatrist or psychologist. See section 106 of the Mental Health Code. The Director's decision may, of course, be reviewed by the courts. Const1963 art 6, Sec. 28.

It is my opinion, therefore, in answer to your third question, that a decision to withhold mental health records may be appealed to the Director of the Department of Mental Health, and the Director's decision may be reviewed by the courts.

Your fourth question is whether the record holder may determine the policies or procedures under which records may be released.

1990 AACS, R 330.7051(12), requires governing bodies of mental health facilities and programs to establish necessary policies and procedures governing the disclosure of information. Policies and procedures authorized by this administrative rule are intended to cover only the mechanics of the release and could include, for example, the time and place where release is to occur, but the policies and procedures could not establish additional conditions for the release not authorized by section 748 of the Mental Health Code.

It is my opinion, therefore, in answer to your fourth question, that the holder of mental health records must adopt policies and procedures governing the mechanics of the release of records but may not attach additional conditions not authorized by section 748 of the Mental Health Code.

Your final question is whether the record holder may require the recipient to agree to hold the record holder harmless as a condition of disclosure of information in the recipient's record. As previously noted, while a holder of medical records may establish procedures for disclosure of records, it may not establish conditions for the release of records that are not authorized by statute or rule.

Under section 748(5)(b) of the Mental Health Code, the holder of the mental health records is required to make a good faith judgment whether the disclosure of the records would be detrimental to the recipient or others. OAG, 1977-1978, No 5125, at p 548. The record holder may not evade that statutory responsibility by requiring the recipient to sign a hold harmless agreement as a condition of releasing the recipient's mental health records. There is simply no authority under the controlling statute or the administrative rules for imposing this condition upon the release of mental health records.

It is my opinion, therefore, in answer to your fifth question, that a recipient may not be required to agree to hold the record holder harmless as a condition of disclosure of information in the recipient's mental health record.

Frank J. Kelley

Attorney General