Bill Text: FL S7048 | 2019 | Regular Session | Prefiled

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

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Bill Title: Disclosure of Confidential Records

Spectrum: Committee Bill

Status: (Failed) 2019-05-03 - Died in Messages, companion bill(s) passed, see CS/CS/SB 1418 (Ch. 2019-134) [S7048 Detail]

Download: Florida-2019-S7048-Prefiled.html

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       Florida Senate - 2019                   (PROPOSED BILL) SPB 7048
       
       
        
       FOR CONSIDERATION By the Committee on Children, Families, and
       Elder Affairs
       
       
       
       
       586-02187-19                                          20197048pb
    1                        A bill to be entitled                      
    2         An act relating to disclosure of confidential records;
    3         amending s. 394.4615, F.S.; requiring service
    4         providers to disclose information from a clinical
    5         record under certain circumstances relating to threats
    6         to cause seriously bodily injury or death; amending s.
    7         456.059, F.S.; requiring, rather than authorizing,
    8         psychiatrists to disclose certain patient
    9         communications for purposes of notifying potential
   10         victims and law enforcement agencies of certain
   11         threats; amending s. 490.0147, F.S.; requiring, rather
   12         than authorizing, psychologists to disclose certain
   13         patient and client communications for purposes of
   14         notifying potential victims and law enforcement
   15         agencies of certain threats; providing psychologists
   16         with immunity from specified liability and actions
   17         under certain circumstances; amending s. 491.0147,
   18         F.S.; requiring, rather than authorizing, certain
   19         license holders and certificate holders to disclose
   20         certain patient and client communications for purposes
   21         of notifying potential victims and law enforcement
   22         agencies of certain threats; providing such persons
   23         with immunity from specified liability and actions;
   24         reenacting s. 490.009, F.S., relating to discipline of
   25         psychiatrists; reenacting s. 491.009, F.S., relating
   26         to discipline of psychologists; providing an effective
   27         date.
   28          
   29  Be It Enacted by the Legislature of the State of Florida:
   30  
   31         Section 1. Present subsections (4) through (11) of section
   32  394.4615, Florida Statutes, are redesignated as subsections (5)
   33  through (12), respectively, a new subsection (4) is added to
   34  that section, and subsection (3) of that section is amended, to
   35  read:
   36         394.4615 Clinical records; confidentiality.—
   37         (3) Information from the clinical record must may be
   38  released in the following circumstances:
   39         (a) when a patient has communicated to a service provider a
   40  specific threat to cause serious bodily injury or death to an
   41  identified or a readily available person, if the service
   42  provider reasonably believes, or should reasonably believe
   43  according to the standards of his or her profession, that the
   44  client has the apparent intent and ability to imminently or
   45  immediately carry out such threat declared an intention to harm
   46  other persons. When such communication declaration has been
   47  made, the administrator must may authorize the release of
   48  sufficient information to provide adequate warning to the person
   49  threatened with harm by the patient and communicate the threat
   50  to law enforcement.
   51         (4)(a)(b) Information from the clinical record may be
   52  released when the administrator of the facility or secretary of
   53  the department deems release to a qualified researcher as
   54  defined in administrative rule, an aftercare treatment provider,
   55  or an employee or agent of the department is necessary for
   56  treatment of the patient, maintenance of adequate records,
   57  compilation of treatment data, aftercare planning, or evaluation
   58  of programs.
   59         (b) For the purpose of determining whether a person meets
   60  the criteria for involuntary outpatient placement or for
   61  preparing the proposed treatment plan pursuant to s. 394.4655,
   62  the clinical record may be released to the state attorney, the
   63  public defender or the patient’s private legal counsel, the
   64  court, and to the appropriate mental health professionals,
   65  including the service provider identified in s.
   66  394.4655(7)(b)2., in accordance with state and federal law.
   67         Section 2. Section 456.059, Florida Statutes, is amended to
   68  read:
   69         456.059 Communications confidential; exceptions.
   70  Communications between a patient and a psychiatrist, as defined
   71  in s. 394.455, shall be held confidential and may shall not be
   72  disclosed except upon the request of the patient or the
   73  patient’s legal representative. Provision of psychiatric records
   74  and reports are shall be governed by s. 456.057. Notwithstanding
   75  any other provision of this section or s. 90.503, when where:
   76         (1) A patient is engaged in a treatment relationship with a
   77  psychiatrist;
   78         (2) Such patient has communicated to the psychiatrist a
   79  specific threat to cause serious bodily injury or death to an
   80  identified or a readily available person made an actual threat
   81  to physically harm an identifiable victim or victims; and
   82         (3) The treating psychiatrist makes a clinical judgment
   83  that the patient has the apparent intent and ability to
   84  imminently or immediately carry out such threat capability to
   85  commit such an act and that it is more likely than not that in
   86  the near future the patient will carry out that threat,
   87  
   88  the psychiatrist shall may disclose patient communications to
   89  the extent necessary to warn any potential victim or to
   90  communicate the threat to a law enforcement agency. A
   91  psychiatrist’s disclosure of confidential communications when
   92  communicating a threat pursuant to this section may not be the
   93  basis of any legal action or criminal or civil liability against
   94  the psychiatrist No civil or criminal action shall be
   95  instituted, and there shall be no liability on account of
   96  disclosure of otherwise confidential communications by a
   97  psychiatrist in disclosing a threat pursuant to this section.
   98         Section 3. Section 490.0147, Florida Statutes, is amended
   99  to read:
  100         490.0147 Confidentiality and privileged communications.—
  101         (1) Any communication between a psychologist any person
  102  licensed under this chapter and her or his patient or client is
  103  shall be confidential.
  104         (a) This privilege may be waived under the following
  105  conditions:
  106         1.(1) When the psychologist person licensed under this
  107  chapter is a party defendant to a civil, criminal, or
  108  disciplinary action arising from a complaint filed by the
  109  patient or client, in which case the waiver shall be limited to
  110  that action; or.
  111         2.(2) When the patient or client agrees to the waiver, in
  112  writing, or when more than one person in a family is receiving
  113  therapy, when each family member agrees to the waiver, in
  114  writing.
  115         (2) Such privilege must be waived, and the psychologist
  116  shall disclose patient and client communications to the extent
  117  necessary to warn any potential victim and to communicate the
  118  threat to a law enforcement agency, if a patient or client has
  119  communicated to the psychologist a specific threat to cause
  120  serious bodily injury or death to an identified or readily
  121  available person, and the psychologist makes a clinical judgment
  122  that the patient or client has the apparent intent and ability
  123  to imminently or immediately carry out such threat. A
  124  psychologist’s disclosure of confidential communications when
  125  communicating a threat pursuant to this subsection may not be
  126  the basis of any legal action or criminal or civil liability
  127  against the psychologist
  128         (3) When there is a clear and immediate probability of
  129  physical harm to the patient or client, to other individuals, or
  130  to society and the person licensed under this chapter
  131  communicates the information only to the potential victim,
  132  appropriate family member, or law enforcement or other
  133  appropriate authorities.
  134         Section 4. Section 491.0147, Florida Statutes, is amended
  135  to read:
  136         491.0147 Confidentiality and privileged communications.—Any
  137  communication between any person licensed or certified under
  138  this chapter and her or his patient or client is shall be
  139  confidential.
  140         (1) This privilege secrecy may be waived under the
  141  following conditions:
  142         (a)(1) When the person licensed or certified under this
  143  chapter is a party defendant to a civil, criminal, or
  144  disciplinary action arising from a complaint filed by the
  145  patient or client, in which case the waiver shall be limited to
  146  that action.
  147         (b)(2) When the patient or client agrees to the waiver, in
  148  writing, or, when more than one person in a family is receiving
  149  therapy, when each family member agrees to the waiver, in
  150  writing.
  151         (2) This privilege must be waived, and the person licensed
  152  or certified under this chapter shall disclose patient and
  153  client communications to the extent necessary to warn any
  154  potential victim and to communicate the threat to a law
  155  enforcement agency, if a patient or client has communicated to
  156  such person a specific threat to cause serious bodily injury or
  157  death to an identified or readily available person, and the
  158  person licensed or certified under this chapter makes a clinical
  159  judgment that the patient or client has the apparent intent and
  160  ability to imminently or immediately carry out such threat. A
  161  disclosure of confidential communications by a person licensed
  162  or certified under this chapter when communicating a threat
  163  pursuant to this subsection may not be the basis of any legal
  164  action or criminal or civil liability against such person
  165         (3) When, in the clinical judgment of the person licensed
  166  or certified under this chapter, there is a clear and immediate
  167  probability of physical harm to the patient or client, to other
  168  individuals, or to society and the person licensed or certified
  169  under this chapter communicates the information only to the
  170  potential victim, appropriate family member, or law enforcement
  171  or other appropriate authorities. There shall be no liability on
  172  the part of, and no cause of action of any nature shall arise
  173  against, a person licensed or certified under this chapter for
  174  the disclosure of otherwise confidential communications under
  175  this subsection.
  176         Section 5. For the purpose of incorporating the amendment
  177  made by this act to section 490.0147, Florida Statutes, in a
  178  reference thereto, paragraph (u) of subsection (1) of section
  179  490.009, Florida Statutes, is reenacted to read:
  180         490.009 Discipline.—
  181         (1) The following acts constitute grounds for denial of a
  182  license or disciplinary action, as specified in s. 456.072(2):
  183         (u) Failing to maintain in confidence a communication made
  184  by a patient or client in the context of such services, except
  185  as provided in s. 490.0147.
  186         Section 6. For the purpose of incorporating the amendment
  187  made by this act to section 491.0147, Florida Statutes, in a
  188  reference thereto, paragraph (u) of subsection (1) of section
  189  491.009, Florida Statutes, is reenacted to read:
  190         491.009 Discipline.—
  191         (1) The following acts constitute grounds for denial of a
  192  license or disciplinary action, as specified in s. 456.072(2):
  193         (u) Failure of the licensee, registered intern, or
  194  certificateholder to maintain in confidence a communication made
  195  by a patient or client in the context of such services, except
  196  as provided in s. 491.0147.
  197         Section 7. This act shall take effect July 1, 2019.