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

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

---

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

---

BILL NUMBER: SB 1407	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JUNE 20, 2012
	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 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, 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
  parent's  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   the  minor patient
and shall not disclose  mental   health 
information about that minor patient based upon an authorization to
release those records signed by the minor's parent or guardian. 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 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) 
    (c)  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) 
    (d)  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   parent's  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) 
    (e)  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  or guardian  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 with Section 360), inclusive, of Chapter 2 of
Part 1 of Division 2 of the Welfare and Institutions Code shall not
allow the parent or guardian to inspect or obtain copies of mental
health records of the minor patient. This restriction shall not apply
if the juvenile court has issued an order authorizing the parent or
guardian to inspect or obtain copies of the mental health records of
the minor patient after finding that 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) 
    (c)  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) 
    (d)  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   parent's
 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) 
    (e)  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  or guardian  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)  (1)    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, of Chapter 2 of Part 1 of Division 2 shall
not release mental health records of the minor patient and shall not
disclose  mental   health  information about that
minor patient based upon an authorization to release those records or
the information signed by the minor's parent or guardian. 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 such an
order would not be detrimental to the minor patient. 
   (b) 
    (2)  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 the parent or guardian to
inspect or obtain copies of mental health records of the minor
patient. This restriction shall not apply if the juvenile court has
issued an order authorizing the parent or guardian to inspect or
obtain copies of the mental health records of the minor patient after
finding that such an order would not be detrimental to the minor
patient. 
   (c) 
    (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. 
   (d) 
    (c)  (1) When the juvenile court has issued an order
described in  paragraph   (1) of  subdivision (a),
the parent or guardian seeking the release of the minor's  mental
health  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 
paragraph (2) of  subdivision  (b),   (a)
 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) 
    (d)  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   parent's  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) 
    (e)  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  or guardian
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.