Physician Practices Must Remain Vigilant in Responding to Subpoenas for Mental Health Information

Review of In the Interest of A.M. v. Thomas, Iowa Supreme Court, November 21, 2014

Summary. In a case it calls one of first impression, the Iowa Supreme Court upheld a subpoena to compel the testimony of a psychotherapist regarding the mental health condition of her patient, the mother of three children, in a Child in Need of Assistance (CINA) adjudicatory custody hearing. The therapist had objected to giving testimony, citing the patient/mental health professional privilege of Iowa Code section 622.10; the prohibitions against disclosure of mental health information of Iowa Code chapter 228; and the federal HIPAA Privacy Rule. The Supreme Court concluded, however, that the specific statutory language of Iowa Code section 232.96(5), stating that the privilege protections for mental health communications shall not be grounds for excluding evidence in a CINA adjudicatory hearing, prevailed.

Background and Analysis – Why the Court landed where it did. This case involved a mother who had temporarily lost custody of her three minor children due to mental health issues and improper supervision. After receiving therapy, the juvenile court returned custody of the children to the mother under supervision of the Department of Human Services. Prior to a subsequent review hearing, however, the guardian ad litem (GAL) appointed by the juvenile court to represent the children’s interests received reports of concern regarding the mother’s behavior and demeanor. As a result, the GAL subpoenaed the mother’s psychotherapist to testify at the review hearing and to produce her therapy notes. The psychotherapist objected and moved to quash the subpoena, citing privilege and confidentiality under Iowa Code chapter 228, prohibiting disclosures of mental health information; Iowa Code 622.10, the patient-health professionals evidentiary privilege statute; and the federal HIPAA Privacy Rule. In response, the GAL argued that Iowa Code section 232.96(5), authorizing admission of otherwise privileged mental health communications in CINA proceedings, supported the subpoena.

The juvenile court upheld the therapist’s motion to quash the subpoena’s request for disclosure of psychotherapy notes; that ruling was not appealed and, as such, not addressed by the Supreme Court.  However, the juvenile court denied the therapist’s motion to quash the subpoena’s request for testimony on the mother’s mental health condition; the therapist appealed this ruling. The Iowa Supreme Court agreed with the juvenile court, ruling that the narrowly-drawn statutory language of section 232.96(5) supported the subpoena and testimony by the psychotherapist.

Section 232.96(5), found in Iowa’s Juvenile Justice Code, specifically directs that the privilege attaching to confidential communications between a patient and a health practitioner or mental health professional shall not be grounds for excluding evidence in a hearing on a petition alleging a child to be in need of assistance. The Court said it is clear from the language of this statute that the legislature intended to create a statutory exception to the patient-psychotherapist privilege of Iowa Code section 622.10. The policy behind the limited statutory exception of 232.96(5) in CINA custody matters makes sense; here, the therapist’s testimony regarding the mother’s mental health and treatment goals is highly relevant to the best interests of the children.

The Court then turned to Iowa Code chapter 228 and its prohibitions against disclosure of mental health information. Section 228.2 directs that mental health information shall not be disclosed, “except as specifically authorized.” Here, section 232.96(5) grants such authorization. Too, section 228.6(1) allows disclosure of mental health information to meet the disclosure requirements of other state or federal laws relating to the protection of human health and safety. Section 232.96(5) grants specific authority for disclosure of mental health communications in CINA adjudicatory proceedings to protect the health and safety of the children. Also, the Court said, under rules of statutory construction, section 232.96(5), a more specific statute, prevails over the general non-disclosure prohibitions of chapter 228.

The Court then looked to the HIPAA Privacy Rule and its prohibitions against disclosure of protected health information and concluded that Iowa’s laws prohibiting release of mental health information are more stringent than HIPAA’s disclosure prohibitions. When state law provides greater privacy protection, HIPAA says that state law prevails. Since the Court had concluded that Iowa’s laws on confidentiality and privilege gave way to the specific authority of Iowa Code section 232.96(5), HIPAA would not compel a different conclusion. After further analysis of the Privacy Rule’s exception for disclosures in judicial and administrative proceedings, the Court concluded that HIPAA does not supersede Iowa Code section 232.96(5) allowing evidence of otherwise privileged mental health communications in CINA proceedings.

The Supreme Court’s ruling in this case principally focused on the interplay between the section 232.96(5) exception allowing admission of otherwise privileged communications in CINA hearings and the privilege and non-disclosure provisions of section 622.10 and chapter 228. The Court, however, went on to say that its statutory conclusions also made policy sense.

The confidentiality interests advanced by section 622.10 and chapter 228 are important to effective mental health treatment, including for parents whose mental health struggles impeded their parenting abilities. “The American Psychiatric Association has recognized that confidentiality is essential to effective treatment, a view that has been confirmed by numerous empirical studies.” At the same time, “the protection of children is one of the most well-established duties and public policies of the State of Iowa.” Juvenile courts are duty bound to intervene and, if necessary, remove a child from the care and custody of parents. Here, the Court said, the Iowa General Assembly prioritized these competing policy interests in favor of access to evidence in CINA proceedings. “It is not our role to second-guess the policy choices of the elected branches.”

The Court also noted that even though section 232.96(5) abrogates the statutory psychotherapist privilege for purposes of CINA adjudicatory hearings, juvenile court records are automatically kept confidential without the need to obtain a protective order. While juvenile court proceedings are generally open to the public, the juvenile court may close a hearing upon motion of either party.

In its analysis of the interplay between the CINA statute permitting disclosure and Iowa statutes on privilege and confidentiality, the Court offered several instructive points, serving as reminders of already established law and legal principles in our state.

  • Iowa has no common law physician-patient privilege; the privilege is strictly statutory.
  • A privilege created by the legislature can be limited by the legislature.
  • While statutes creating privileges are liberally construed, the evidentiary privileges of section 622.10 are narrowly construed because they impede the full and free discovery of the truth.
  • Whether viewed broadly or narrowly, the language and plain meaning of section 232.96(5) is dispositive; courts are not free to rewrite statutes under the guise of liberal construction.
  • Here, the legislature, itself, has specifically directed that chapter 232 shall be liberally construed to best serve the child’s welfare.

Vigilance in responding to subpoenas for mental health information remains important. Physicians and medical clinics receiving subpoenas for release of mental health information must remain vigilant in their review of the subpoena, the communications and records being requested by that subpoena, and the context in which the subpoena has been issued. Again, this Supreme Court ruling is narrowly focused. Differences in facts and circumstances compel different results. The Iowa Supreme Court in no way intended to diminish the vitally important privilege and confidentiality protections of either section 622.10 or chapter 228.

Iowa’s physician practices know full well that mental health information is particularly sensitive. Risks of liability and/or negative treatment outcomes for inappropriate disclosure of mental health information are high. Physician practices are well advised to continue to seek legal counsel before responding to subpoenas for release of mental health information. Medical practices cannot ignore a subpoena but they also must assure that any release of mental health information is clearly supported in fact and law.