Medical Records and the Law

186 CHAPTER 6: ACCESS TO HEALTH INFORMATIONconfined in mental institutions to obtain access to all of their recordsmaintained by the state, even if their guardians do not consent to disclosure,unless the state can challenge the patients’ capacity to give informedconsent. 369State legislation in some jurisdictions allows mental health patientsto petition a court to seal the records of treatment. Under New Yorklegislation, for example, patients must demonstrate by competent medicalevidence that they are not currently suffering from mental illness,that they have not received inpatient services for treatment of mentalillness for a period of three years, and that the interests of both the petitionersand society would be served best by sealing the records. 370One court has ruled that society has an interest in sealing mental healthrecords to remove the barriers that would prevent a former psychiatricpatient from participating fully in society without fear of stigma or discrimination.371 In the absence of a statutory right to expunge mentalhealth records, some courts have authorized such action for recordsthat result from an illegal commitment or illegal involuntary examinationproceeding involving falsehood or perjury. 372Under the Privacy Rule and most state laws, a person authorized bya competent patient may obtain access to that patient’s records, includingthose relating to mental health treatment but excluding psychotherapynotes. If a patient is incompetent, the duly authorized legalguardian may access the records in the same manner as a competentpatient. 373 However, the healthcare organization or provider should requestto see the appropriate authorization before permitting access by aperson who claims to be acting on behalf of an incompetent patient.Under state law, a guardian who has been appointed for a specific purposedoes not necessarily have the authority to review an incompetentpatient’s records. 374 The Privacy Rule defers to state laws for the determinationof the qualifications of a person to act as a personal representativefor purposes of granting authority to use or disclose PHI.Similarly, where an incompetent patient has a guardian assigned bya court to act in the person’s best interests, the healthcare organization369Bonnie S. v. Altman, 683 F. Supp. 100 (D.N.J. 1988).370N.Y. Mental Hyg. Law § 33.14(a)(1) and (b).371Smith v. Butler Hospital, 544 N.Y.S. 2d 711 (Sup. Ct. 1989).372Johnston v. State, 466 So. 2d 413 (Fla. Dist. Ct. App. 1985), citing Wolfe v. Beal, 384 A.2d 1187 (Pa. 1978).37345 C.F.R. § 164.502(g)(2). See also Gaertner v. State, 187 N.W. 2d 429 (Mich. 1971).374See, e.g., In re Patarino, 142 N.Y.S. 2d 891 (Ct. Cl. 1955).