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

CHILD PROTECTION LAW:

CHILDREN AND MINORS:

FAMILY INDEPENDENCE AGENCY:

MENTAL HEALTH:

Accessing clinical records of community mental health service recipients


Family Independence Agency child protective services workers, while in the course of investigating suspected child abuse or neglect, are entitled to access community mental health agency clinical records of the involved children.

Family Independence Agency child protective services workers, while in the course of investigating suspected child abuse or neglect, are entitled to access relevant community mental health agency clinical records of other recipients of community mental health services.


Opinion No. 6976

March 26, 1998


Honorable Sharon L. Gire
State Representative
The Capitol
Lansing, MI 48909


You have asked two questions concerning the ability of Family Independence Agency child protective services workers to access client records maintained by community mental health agencies.

Your first question asks whether Family Independence Agency child protective services workers, while in the course of investigating suspected child abuse or neglect, are entitled to access community mental health agency clinical records of the involved children.

Chapter 2 of the Mental Health Code, 1974 PA 258, MCL 330.1200a et seq; MSA 14.800(200a) et seq, establishes community mental health agencies to provide mental health services to individuals within their geographic areas. Section 748(1) of the Mental Health Code provides:

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.

Section 748(5)(d) of the Mental Health Code, however, provides that information that is otherwise confidential under section 748 shall be disclosed, when requested, "[i]f necessary in order to comply with another provision of law." Moreover, section 748(7)(c) authorizes disclosure of such records:

To providers of mental or other health services or a public agency, if there is a compelling need for disclosure based upon a substantial probability of harm to the recipient or other individuals.

OAG, 1991-1992, No 6700, p 84 (September 18, 1991), which addressed the Department of Social Services'1 right to access community mental health recipient information in the course of an adult protective services investigation, concluded that community mental health agencies must allow access to such information by adult protective services workers. As noted in that opinion, section 11b of the Social Welfare Act, 1939 PA 280, MCL 400.11b; MSA 16.411b, requires the Family Independence Agency, within 24 hours after receiving a report or information that an adult is being abused, neglected or exploited, to commence an investigation "to determine whether the person suspected of being . . . abused, neglected or exploited, is an adult in need of protective services." (Emphasis added.)

Under the Child Protection Law, 1975 PA 238, MCL 722.621 et seq; MSA 25.248(1) et seq, the Family Independence Agency has a corresponding duty to investigate suspected child abuse or neglect. Section 8(1) of that act states in relevant part, "[w]ithin 24 hours after a report made pursuant to this act, the department . . . shall commence an investigation of the child suspected of being abused or neglected." "Child abuse" is defined in section 2(c) of the act to mean "harm or threatened harm to a child's health or welfare by a parent, legal guardian, or any other person responsible for the child's health or welfare or by a teacher or teacher's aide that occurs through nonaccidental physical or mental injury; sexual abuse; sexual exploitation; or maltreatment." "Child neglect" is defined in section 2(d) as:

[H]arm or threatened harm to a child's health or welfare by a parent, legal guardian, or any other person responsible for the child's health or welfare that occurs through either of the following:

(i) Negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care.

(ii) Placing a child at an unreasonable risk to the child's health or welfare by failure of the parent, legal guardian, or any other person responsible for the child's health or welfare to intervene to eliminate that risk when that person is able to do so and has, or should have, knowledge of the risk.

The Child Protection Law and the Social Welfare Act impose on the Family Independence Agency strikingly similar duties regarding the scope of child and adult protective services investigations. With respect to adults, section 11b of the Social Welfare Act provides in relevant part:

(3) The investigation shall include a determination of the nature, extent, and cause of the abuse, neglect, or exploitation; examination of evidence; identification, if possible, of the person responsible for the abuse, neglect, or exploitation; the names and conditions of other adults in the place of residence; an evaluation of the persons responsible for the care of the adult, if appropriate; the environment of the residence; the relationship of the adult to the person responsible for the adult's care; an evaluation as to whether or not the adult would consent to receiving protective services; and any other pertinent data.

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(5) The investigation may include a medical, psychological, social, vocational, and educational evaluation and review.

(6) In the course of an investigation, the county department shall determine if the adult is or was abused, neglected, or exploited. The county department shall make available to the adult the appropriate and least restrictive protective services, directly or through the purchase of services from other agencies and professions, and shall take necessary action to safeguard and enhance the welfare of the adult, if possible. The county department also shall collaborate with law enforcement officers, courts of competent jurisdiction, and appropriate state and community agencies providing human services, which services are provided in relation to preventing, identifying, and treating adult abuse, neglect, or exploitation.

With respect to children, section 8 of the Child Protection Law provides in relevant part:

(2) In the course of its investigation, the department shall determine if the child is abused or neglected. The department shall cooperate with law enforcement officials, courts of competent jurisdiction, and appropriate state agencies providing human services in relation to preventing, identifying, and treating child abuse and neglect; shall provide, enlist, and coordinate the necessary services, directly or through the purchase of services from other agencies and professions; and shall take necessary action to prevent further abuses, to safeguard and enhance the welfare of the child, and to preserve family life where possible.

OAG, 1991-1992, No 6700, supra, concluded that a community mental health agency must disclose to an adult protective services worker who is conducting an investigation under section 11b of the Social Welfare Act information and records concerning an adult suspected of being abused or neglected. The reasoning for that conclusion is set forth at pp 85-86 of the opinion, as follows:

In order to effectively carry out this statutorily mandated investigation, adult protective services workers employed by the Department of Social Services must be permitted access to information, including information contained in community mental health records, which will assist in the goal of protecting vulnerable adults. Disclosure of such community mental health records to adult protective services workers is therefore, "necessary in order to comply with another provision of law" within the meaning of section [748(5)(d)] of the Mental Health Code, supra, and is, moreover, an appropriate disclosure to a "public agency" since there is a "compelling need for disclosure based upon a substantial probability of harm to the recipient or other persons" within the meaning of section [748(7)(c)] of the Mental Health Code.2

If the right of the Department of Social Services, through its adult protective services workers, to gain access to information or records pertaining to a recipient of community mental health services suspected of being abused were conditioned on whether a report of mistreatment is made by community mental health staff, the result would be that the community mental health agency and not the Department of Social Services would make the determination of whether a vulnerable adult is in need of protective services. As previously noted, the Social Welfare Act mandates that the Department of Social Services make this determination.

The foregoing reasoning applies with equal force to child protective services investigations, since both statutes are intended to identify and then prevent further abuse and neglect of similarly vulnerable populations. In Michigan Ass'n of Intermediate Special Educ Administrators v Dep't of Social Services, 207 Mich App 491, 496-497; 526 NW2d 36 (1994) lv den 450 Mich 855 (1995), the court recognized that the adult protective services provisions of the Social Welfare Act and the Child Protection Law have a common purpose and, therefore, should be interpreted similarly:

The statutory provisions are parallel in most respects. They establish the method for reporting and investigating instances of abuse and neglect for individuals under disability for whom the state stands in the position of parens patriae, i.e., children and vulnerable adults. They also define the conduct that is abusive or neglectful. Consequently, the statutes, having a common purpose, are in pari materia and should be construed similarly in order to give horizontal coherence to the law.

It is my opinion, therefore, in answer to your first question, that Family Independence Agency child protective services workers, while in the course of investigating suspected child abuse or neglect, are entitled to access community mental health agency clinical records of the involved children.

You next ask whether Family Independence Agency child protective services workers, while in the course of investigating suspected child abuse or neglect, are entitled to access relevant clinical records of other recipients of community mental health services.

None of the foregoing authorities distinguishes between accessing records of children versus records of adults. Access to community mental health records of an adult, particularly where the adult is suspected of abusing or neglecting the child who is the subject of a protective services investigation, may be necessary to enable the protective services worker to determine whether child abuse or neglect has occurred, or to take necessary action to prevent further abuse or neglect, or otherwise safeguard the welfare of the child. Moreover, section 748(7)(c) of the Mental Health Code, supra, which authorizes disclosure of mental health recipient records to a public agency to prevent harm to the recipient or other individuals, would include the situation where an adult mental health recipient's clinical records may contain important information relevant to establishing the suspected child abuse or neglect. "[A] remedial statute, such as the Child Protection Law, that attempts to protect the public health and general welfare should be liberally construed." Williams v Coleman, 194 Mich App 606, 612; 488 NW2d 464 (1992).

It is my opinion, therefore, in answer to your second question, that Family Independence Agency child protective services workers, while in the course of investigating suspected child abuse or neglect, are entitled to access relevant community mental health agency clinical records of other recipients of community mental health services.



FRANK J. KELLEY
Attorney General

1 The Department of Social Services was renamed the Family Independence Agency. See, 1995 PA 223, MCL 400.1; MSA 16.401.

2 Sections 748(4)(d) and 748(6)(c) of the Mental Health Code were renumbered in 1995 PA 290 as section 748(5)(d) and section 748(7)(c), respectively.