Bill Text: CA SB1407 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Medical information: disclosure.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2012-09-27 - Chaptered by Secretary of State. Chapter 657, Statutes of 2012. [SB1407 Detail]

Download: California-2011-SB1407-Amended.html

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BILL NUMBER: SB 1407	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JUNE 12, 2012
	AMENDED IN SENATE  APRIL 30, 2012
	AMENDED IN SENATE  APRIL 16, 2012
	AMENDED IN SENATE  MARCH 29, 2012

INTRODUCED BY   Senator Leno

                        FEBRUARY 24, 2012

   An act to add Section 56.106 to the Civil Code, to add Section
123116 to the Health and Safety Code, and to add Section 5328.03 to
the Welfare and Institutions Code, relating to medical information.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1407, as amended, Leno. Medical information: disclosure.
   Existing law governs the release of a patient's medical records
and medical information by a health care provider, health care
service plan, pharmaceutical company, or provider. A violation of
these provisions that causes economic loss or personal injury to a
patient is punishable as a misdemeanor. Under existing law, a patient
may inspect his or her medical records if the patient or his or her
representative, as defined, presents a written request to the health
care provider. Existing law also authorizes a health care provider,
health care service plan, pharmaceutical company, or contractor to
release a patient's medical information after receiving a valid
signed authorization from the patient, the patient's legal
representative, as defined, if the patient is a minor or incompetent,
and other specified individuals. Existing law provides that a minor
may be removed from the physical custody of his or her parents in
dependency proceedings if there is a substantial danger to the
physical health of the child or the child is suffering severe
emotional damage and there are no reasonable means to protect the
child without removing him or her.
   This bill would prohibit a psychotherapist, as defined,  who
knows that a minor has been removed from the physical custody of his
or her parent or guardian in dependency proceedings,  from
releasing or disclosing the information in the mental health records
of  a   that  minor patient to the patient'
s parent or guardian based solely on an authorization to release
those records signed by the parent or guardian, and from allowing the
parent or guardian to inspect or obtain those records,  if
the minor has been removed from the parent's or guardian's physical
custody in dependency proceedings, except if   unless
 the juvenile court has authorized the parent or guardian to
sign an authorization for the release of those records after finding
that the authorization order would not be detrimental to the minor.
 Under the bill, when the juvenile court issues such an order,
the parent or guardian would be required to present a copy of the
order to the psychotherapist before the release of the records or any
information about the minor. When presented with the order, the
psychotherapist would have no duty to inquire into whether a minor
has been removed from the   physical custody of his or her
parent or guardian in dependency proceedings.  Because a
violation of these provisions that causes economic loss or personal
injury to a patient would be punishable as a misdemeanor, this bill
would impose a state-mandated local program.  The bill would not
affect a psychotherapist's ability to deny a parent or guardian's
request to inspect or obtain a minor's records in specified
circumstances, and would not affect the psychotherapist's immunity
from liability for that decision. 
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 56.106 is added to the Civil Code, to read:
   56.106.  (a) Notwithstanding  Section 3025 of the Family Code,
paragraph (2) of subdivision (c) of Section 56.11, or  any
other provision of law, a psychotherapist  who knows that a minor
has been removed from the custody of his or her parent or guardian
pursuant to Article 6 (commencing with Section 300) to Article 10
(commencing with Section 360), inclusive, of Chapter 2 of Part 1 of
Division 2 of the Welfare and Institutions Code  shall not
release  the  mental health records of a minor patient
 or   and shall not  disclose  the
 information  therein   about that
minor patient  based  solely on   upon
 an authorization to release those records signed by the minor's
parent or guardian  if that minor has been removed from the
physical custody of the parent or guardian pursuant to Section 300 of
the Welfare and Institutions Code, unless   . 
 This restriction shall not apply if  the juvenile court has
issued an order authorizing the parent or guardian to sign an
authorization for the release of the  mental health  records
 or the information about the minor patient  after finding
that  the   such an  order would not be
detrimental to the minor patient.
   (b) For purposes of this section, the following definitions apply:

   (1) "Mental health records" means mental health records as defined
by subdivision (b) of Section 123105 of the Health and Safety Code.
   (2) "Psychotherapist" means a provider of health care as defined
in Section 1010 of the Evidence Code.
   (c) This section shall not apply to either a written mental health
record maintained by a health facility as defined in subdivision
(a), (b), or (f) of Section 1250 of the Health and Safety Code, or an
oral disclosure of information in compliance with Section 56.1007 by
that facility. 
   (d) When the juvenile court has issued an order authorizing the
parent or guardian to sign an authorization for the release of the
mental health records or information about that minor patient under
the circumstances described in subdivision (a), the parent or
guardian seeking the release of the minor's records or information
about the minor shall present a copy of the court order to the
psychotherapist before any records or information may be released
pursuant to the signed authorization.  
   (e) Nothing in this section shall be construed to prevent or limit
a psychotherapist's authority under subdivision (a) of Section
123115 of the Health and Safety Code to deny a parent or guardian's
written request to inspect or obtain copies of the minor patient's
mental health records, notwithstanding the fact that the juvenile
court has issued an order authorizing the parent or guardian to sign
an authorization for the release of the mental health records or
information about that minor patient. Liability for a psychotherapist'
s decision not to release the mental health records of the minor
patient or not to disclose information about the minor patient
pursuant to the authority of subdivision (a) of Section 123115 of the
Health and Safety Code shall be governed by that section.  

   (f) Nothing in this section shall be construed to impose upon a
psychotherapist a duty to inquire or investigate whether a child has
been removed from the physical custody of his or her parent or
guardian pursuant to Article 6 (commencing with Section 300) to
Article 10 (commencing with Section 360), inclusive, of Chapter 2 of
Part 1 of Division 2 of the Welfare and Institutions Code when a
parent presents the minor's psychotherapist with an authorization to
release information or the mental health records regarding the minor
patient. 
  SEC. 2.  Section 123116 is added to the Health and Safety Code, to
read:
   123116.  (a) Notwithstanding  Section 3025 of the Family Code,
paragraph (2) of subdivision (c) of Section 56.11 of the Civil Code,
or  any other provision of law, a psychotherapist  who
knows that a minor has been removed from the physical custody of his
or her parent or guardian pursuant to Article 6 (commencing with
Section 300) to Article 10 (commencing wit   h Section 360),
inclusive, of Chapter 2 of Part 1 of Division 2 of the Welfare and
Institutions Code  shall not allow  a   the
 parent or guardian to inspect or obtain copies of mental
health records of  a   the  minor patient
 if that minor has been removed from the physical custody of
the parent or guardian pursuant to Section 300 of the Welfare and
Institutions Code, unless  . This restriction shall not
apply if  the juvenile court has issued an order authorizing the
parent or guardian to  sign an authorization for the release
  inspect or obtain copies  of the  mental
health  records  of the minor patient  after finding
that  the   such an  order would not be
detrimental to the minor patient.
   (b) For purposes of this section, the following definitions apply:

   (1) "Mental health records" means mental health records as defined
by subdivision (b) of Section 123105.
   (2) "Psychotherapist" means a provider of health care as defined
in Section 1010 of the Evidence Code.
   (c) This section shall not apply to either a written mental health
record maintained by a health facility as defined in subdivision
(a), (b), or (f) of Section 1250, or an oral disclosure of
information in compliance with Section 56.1007 of the Civil Code by
that facility. 
   (d) When the juvenile court has issued an order authorizing the
parent or guardian to inspect or obtain copies of the mental health
records of a minor patient under the circumstances described in
subdivision (a), the parent or guardian requesting to inspect or
obtain copies of the mental health records of the minor patient shall
present a copy of the court order to the psychotherapist and shall
comply with subdivisions (a) and (b) of Section 123110 before the
records may be accessed by the parent or guardian.  
   (e) Nothing in this section shall be construed to prevent or limit
a psychotherapist's authority under subdivision (a) of Section
123115 to deny a parent or guardian's written request to inspect or
obtain copies of the minor patient's mental health records,
notwithstanding the fact that the juvenile court has issued an order
authorizing the parent or guardian to inspect or obtain copies of the
minor patient's mental health records. Liability for a
psychotherapist's decision not to allow the parent or guardian to
inspect or obtain copies of records pursuant to the authority of
subdivision (a) of Section 123115 shall be governed by that section.
 
   (f) Nothing in this section shall be construed to impose upon a
psychotherapist a duty to inquire or investigate whether a child has
been removed from the physical custody of his or her parent or
guardian pursuant to Article 6 (commencing with Section 300) to
Article 10 (commencing with Section 360), inclusive, of Chapter 2 of
Part 1 of Division 2 of the Welfare and Institutions Code when a
parent presents the minor's psychotherapist with a written request to
inspect or obtain copies of the minor's mental health records. 

  SEC. 3.  Section 5328.03 is added to the Welfare and Institutions
Code, to read:
   5328.03.  (a) Notwithstanding Section 5328  of this code,
Section 3025 of the Family Code, or paragraph (2) of subdivision (c)
of Section 56.11 of the Civil Code  , a psychotherapist who
knows that a minor has been removed from the physical custody of his
or her parent or guardian pursuant to Article 6 (commencing with
Section 300) to Article 10 (commencing with Section 360), inclusive,
o   f Chapter 2 of Part 1 of Division 2  shall not
release mental health records of  a   the 
minor patient  or   and shall not  disclose
 the  information  therein  
about that minor patient  based  solely on 
 upon  an authorization to release those records  or the
information  signed by the minor's parent or guardian 
if that minor has been removed from the physical custody of the
parent or guardian pursuant to Section 300, unless   .
  This restriction shall not apply if  the juvenile
court has issued an order authorizing the parent or guardian to sign
an authorization for the release of the records  or information
 after finding that  the   such an 
order would not be detrimental to the minor patient.
   (b) Notwithstanding Section 5328  of this code or Section 3025
of the Family Code  , a psychotherapist  who knows that a
minor has been removed from the physical custody of his or her parent
or guardian pursuant to Article 6 (commencing with Section 300) to
Article 10 (commencing with Section 360), inclusive, of Chapter 2 of
Part 1 of Division 2  shall not allow  a  
the  parent or guardian to inspect or obtain copies of mental
health records of  a   the  minor patient
 if that minor has been removed from the physical custody of
the parent or guardian pursuant to Section 300, unless  
. This restriction shall not apply if  the juvenile court has
issued an order authorizing the parent or guardian to  sign
an authorization for the release   inspect or obtain
copies  of the  mental health  records of the minor
patient  after finding that  the   such an
 order would not be detrimental to the minor patient.
   (c) For purposes of this section, the following definitions apply:

   (1) "Mental health records" means mental health records as defined
by subdivision (b) of Section 123105 of the Health and Safety Code.
   (2) "Psychotherapist" means a provider of health care as defined
in Section 1010 of the Evidence Code. 
   (d) (1) When the juvenile court has issued an order described in
subdivision (a), the parent or guardian seeking the release of the
minor's records or information about the minor shall present a copy
of the court order to the psychotherapist before any records or
information may be released pursuant to the signed authorization.
 
   (2) When the juvenile court has issued an order described in
subdivision (b), the parent or guardian seeking to inspect or obtain
copies of the mental health records of the minor patient shall
present a copy of the court order to the psychotherapist and shall
comply with subdivisions (a) and (b) of Section 123110 of the Health
and Safety Code before the parent or guardian is allowed to inspect
or obtain copies of the mental health records of the minor patient.
 
   (e) Nothing in this section shall be construed to prevent or limit
a psychotherapist's authority under subdivision (a) of Section
123115 of the Health and Safety Code to deny a parent or guardian's
written request to inspect or obtain copies of the minor patient's
mental health records, notwithstanding the fact that the juvenile
court has issued an order authorizing the parent or guardian to sign
an authorization for the release of the mental health records or
information about that minor patient, or to inspect or obtain copies
of the minor patient's health records. Liability for a
psychotherapist's decision not to release records, not to disclose
information about the minor patient, or not to allow the parent or
guardian to inspect or obtain copies of the mental health records
pursuant to the authority of subdivision (a) of Section 123115 of the
Health and Safety Code shall be governed by that section.  

   (f) Nothing in this section shall be construed to impose upon a
psychotherapist a duty to inquire or investigate whether a child has
been removed from the physical custody of his or her parent or
guardian pursuant to Article 6 (commencing with Section 300) to
Article 10 (commencing with Section 360), inclusive, of Chapter 2 of
Part 1 of Division 2 when a parent presents the minor's
psychotherapist with an order authorizing the parent or guardian to
sign an authorization for the release of information or the mental
health records regarding the minor patient or authorizing the parent
or guardian to inspect or obtain copies of the mental health records
of the minor patient. 
   (d) This section shall not apply to either a written mental health
record maintained by a health facility as defined in subdivision
(a), (b), or (f) of Section 1250 of the Health and Safety Code, or an
oral disclosure of information in compliance with Section 56.1007 of
the Civil Code by that facility.
  SEC. 4.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.