Heightened Confidentiality for Mental-Health Information
Pennsylvania and federal laws provide heightened confidentiality to an individual’s mental-health records. The confidentiality is heightened as compared to other medical records. This represents an important public-health policy embraced by the state and federal legislatures.
When a party to a lawsuit seeks mental-health records from another party or from a non-party, difficult issues arise. State and federal statutes, such as HIPAA and Pennsylvania’s Mental Health Procedures Act (“MHPA”), and corresponding regulations must be analyzed carefully. The threshold inquiry is whether an entity that has the records falls within the reach of the confidentiality laws. For example, is an entity that has records containing an individual’s mental-health information a “facility” as defined in the MHPA? The answer is not always clear. In that event, it often is prudent for the entity to err on the side of caution and provide heightened confidentiality as required by the law. The Act prohibits a covered facility from disclosing covered information. So an entity exposes itself to greater risk if it does not comply with the law, then later finds out that a court believes it was supposed to comply.
This issue is not novel. It recently came up in a case that was appealed to the Superior Court of Pennsylvania. In T.M. v. Elwyn, Inc., a defendant was a school for children with mental and behavioral issues. The lawsuit alleged that a student was sexually assaulted by a school counselor. In discovery, the student sought information about instances of sexual assault involving other students. The school opposed the requests, arguing that mental-health information could not be released based on the MHPA, HIPAA, and other laws. The trial court issued two discovery orders requiring disclosure but with identifying information redacted. The school appealed the orders. The appellate court vacated the orders and remanded for the trial court’s further consideration on a number of grounds. One of the considerations for the trial court was if the school was a “facility” under the MHPA. If so, and if the trial court also decided that the documents that the student wanted contained mental-health treatment information, then the trial court had to amend its initial discovery orders to provide even further protections.
