I.        CONFIDENTIALITY OF MENTAL HEALTH RECORDS

A.        Definition.      Confidentiality means the obligation of a health care treatment        provider to avoid disclosure of health care records to unauthorized persons.  Wisconsin Statutes create a specific obligation on health care providers to preserve the confidentiality of health care records in their maintenance, dissemination, and eventual destruction of those records.

B.        Rule.   The default rule is that all patient health care records are confidential.  Wis. Stat. § 146.82 (1).  Disclosure may be made only with the patient’s informed consent, or with the informed consent of a person authorized by the patient (e.g., an agent under a health care power of attorney).

C.        Informed Consent.     To be legally effective, a patient’s informed consent must be in writing and include the patient’s name, the purpose of the disclosure, the type of professional making the disclosure (physician/nurse/counselor/etc.), the information to be disclosed, the entity to which the disclosure is to be made, the time period during which the consent is effective, the signature of the patient or a legally responsible or authorized person, the relationship of the signator to the patient, and the date.  Wis. Stat. § 146.81 (2).

D.        Exceptions.     Specific exceptions to the confidentiality rule are set forth in Wis. Stat. § 146.82 (2). In general, informed consent is not required for release of information necessary to conduct management or financial audits or evaluations of programs and services, for research purposes under specific conditions, or to various state agencies whose function is to protect vulnerable populations.  There is also an exception permitting disclosure to other healthcare providers, and to persons rendering assistance when a patient’s life or health appears to be in danger.  Most relevant to this discussion, a lawful court order is an exception to the confidentiality rule.  Additionally, a parent, guardian, or legal custodian of a minor patient, a guardian of an adjudged incompetent patient, and the personal representative or widow/widower of a deceased patient are entitled to access to medical records of the patient without the patient’s informed consent.  Wis. Stat. §§ 146.81 (5) and 148.82 (2).

E.        Patient Rights.     Pursuant to Wis. Stat. § 146.83, patients have a right to a copy of their treatment records, subject to modification if necessary to protect the confidentiality of other patients.

F.        HIPAA.     The Health Insurance Portability and Accountability Act of 1996  (HIPAA) requires that all health care providers comply with federal privacy  regulations relating to the use and disclosure of mental health records.  HIPAA does not affect the substantive application of Wisconsin Statutes, which comply with or exceed the federally imposed standards.  Moreover, HIPAA has no impact on evidentiary determinations in litigation relating to access to, relevance of, or admissibility of medical treatment records.  However, HIPAA does set forth specific procedural regulatory requirements for gaining access to medical records, which are generally accommodated by the authorization forms required by health care providers prior to their release of information. 

II.        PRIVILEGE

A.        Scope.     Wis. Stat. § 905.04(2) provides patients with a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or information obtained or disseminated for the purpose of diagnosis or treatment of the patient’s physical, mental, or emotional condition between the patient and specified treatment providers: physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist, and professional counselor.  The purpose behind the privilege is to encourage patients to discuss medical concerns freely with health care providers withoutfear the information will be used against them.  The scope of the privilege is gauged by the patient’s objectively reasonable perceptions and expectations   of the medical provider.  State v. Locke, 177 Wis. 2d 590, 502 N.W. 2d 891  (Ct. App. 1993).

B.        Effect of Relevancy.     The purpose of the privilege is to protect the patient
from being required to disclose confidential relevant information.  If the information were not relevant, assertion of a privilege would not be required to prevent its disclosure/admission into evidence.  Thus, an argument that the information should be disclosed because it is relevant to the proceeding at hand should not be sufficient to over-ride assertion of the privilege.  Relevance is not the issue.  The importance of maintaining the confidential treatment relationship trumps relevance.  Similarly, a plaintiff or victim patient is not obligated to disclose privileged records just because a defendant has made a preliminary showing of relevancy.  Nor may a court order a psychologist to disclose a victim’s privileged records in a criminal proceeding State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993); State v. Speese, 191 Wis. 2d 205, 528 N.W.2d 63 (Ct. App. 1995, rev’d on other grounds).  However, if a victim patient refuses to disclose his or her records, a court should suppress his or her testimony to protect the defendant’s right to a fair trial.  Shiffra, 175 Wis. 2d at 612.

C.        Assertion of Privilege.     The privilege belongs to the patient.  It may also be claimed by the patient’s guardian or conservator, or the personal representative of a deceased patient.  The patient’s lawyer or physician may assert the privilege on the patient’s behalf.  Wis. Stat. § 905.04 (3).  In State v. S.H., 159 Wis. 2d 730, 465 N.W.2d 238 (Ct. App. 1990), the court ruled that the assertion of the psychologist-patient privilege by a guardian ad litem on behalf of the children superseded a parent’s authorization for release of the children’s treatment records.  It is not clear whether the decision was made because the court thought the guardian ad litem’s authority should prevail over that of the parent or because the court concluded that where there is disagreement between/ among persons authorized to assert privilege over whether privilege should be asserted, the matter should be resolved in favor of retaining the privilege.

D.        Communication for Purpose of Diagnosis or Treatment.     Privilege extends only to communications or information made for the purpose of diagnosis or treatment.  Evidence unrelated to treatment is admissible even though the physician gained knowledge of it in the context of the physician-patient relationship.  See Kirkpatrick v. Milks, 257 Wis. 549, 44 N.W.2d 574 (1950).

E.        Court-Ordered Evaluations.     Privilege does not apply to court-ordered physical, mental, or vocational examinations, because there is no expectation of confidentiality.  Communication is confidential only if not intended to be disclosed to third person.  Wis. Stat. § 905.04 (1)(b).

F.         Exceptions.     Exceptions are set forth in Wis. Stat. § 905.04 (4).  The party  invoking the exception has the burden of proof by a preponderance of the evidence on all issues of law and fact.  Statutory exceptions include the following: 

• Proceedings for hospitalization, etc.
• Proceedings for guardianship
• Examination by order of judge
• Condition as element of claim or defense
• Homicide trials
• Abused or injured child’s medical records
• Reports of child abuse/neglect required under Wis. Stat. § 48.981
• Expectant mother’s medical records re abused unborn child
• Tests for intoxication
• Pregnancy and birth records in paternity proceedings
• Reporting wounds and burn injuries
• Juvenile matters

Note what is NOT included in the exceptions.  There is no exception for evidence relating to the best interest of the child in family court proceedings.  There is no exception for evidence of parents’ health issues that may be raised in custody and placement proceedings.  Thus, the privilege applies in these proceedings and may be asserted by a parent with respect to his/her own records and/or the records of his/her children.

Query:  What happens when parents disagree over whether to authorize disclosure or assert privilege with respect to a child’s records?  There is currently no answer to this question under Wisconsin law.

G.        Dangerous Patient Exception.     In addition to the statutory exceptions, the courts have added another exception by case law:  the dangerous patient exception.  If a patient gives a treatment provider reason to believe that the patient is likely to engage in behavior that is dangerous to himself/herself or to others, the provider’s duty to the patient and to third parties who may be harmed by the patient requires that the provider disclose otherwise privileged information to the extent necessary to resolve the dangerous situation.  Schuster v. Altenberg, 144 Wis. 2d 223, 434 N.W. 2d 159 (1988); State v. Agacki, 226 Wis. 2d 349, 595 N.W. 2d 31 (Ct. App. 1999).

H.        Waiver.     Privilege is waived if the holder voluntarily discloses, or consents  to the disclosure, of any significant part of the privileged matter or conversation.  Wis. Stat. § 905.11.  See also Wis. Stat. §§ 146.81 et seq., 905.04.  Waiver can be accomplished inadvertently or unintentionally if the patient voluntarily refers to the privileged communication during direct examination, voluntarily provides limited information (e.g., an authorization to talk with a treatment provider but not to look at records), or voluntarily discloses information to any third person (e.g., a guardian ad litem or family court counselor).  Once privilege has been waived, it cannot be reasserted with respect to undisclosed parts of the medical record or to other potential recipients of the information.  Privilege is “all or nothing.”   See E. J. Imwinkelried, Evidentiary Foundations 6^th edition, 202-203 (Lexis/Nexis 2005).  See also Ackerman & Kane, Psychological Experts in Divorce Actions 104 (Aspen 1998).  Notwithstanding the above, communication about privileged matters with one’s attorney does not waive the privilege.  Johnson v. Rogers Memorial Hospital, 283 Wis. 2d 384, 700 N.W.2d           27, 2005 WI 114.

III.         THE UNITED STATES SUPREME COURT ON THE IMPORTANCE OF THE PSYCHOTHERAPIST-PATIENT PRIVILEGE

In 1996, the U.S. Supreme Court created a psychotherapist-patient privilege in   federal courts and justified the decision with the following language:

Like spousal and attorney client privileges, the psychotherapist patient privilege is “rooted in the imperative need for confidence and trust.”  Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests.  Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.  Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling may cause embarrassment or disgrace.  For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.  As the Judicial Conference Advisory Committee observed in 1972 when it recommended that Congress recognize a psychotherapist privilege as part of the Proposed Federal Rules of Evidence, a psychiatrist’s ability to help her patients “is completely dependent on [the patient’s] willingness and ability to talk freely”.  This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure … patients of confidentiality and, indeed, privileged communication.  Where there may be exceptions to this general rule …, there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment … .  The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.  The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.  Jaffee v. Redmond, 518 US 1, 10 (1996) (citations omitted).