CONFIDENTIALITY AND PRIVILEGE Based on presentation by Linda Medeiros Modified for FLTF & CLAVC 6/15/18

Confidentiality & Privilege Distinguished Confidential - information that is not accessible to general public and cannot be disclosed without the person’s consent Privileged - confidential information that cannot be introduced into evidence (by testimony or document) without a waiver of the privilege by the client or a court order overriding the privilege

Confidential Personal information that cannot be disclosed without the person’s consent (i.e., signed release). Examples: medical records, educational records, financial records

Privilege Rule of Evidence 501 An exception to the general rule of evidence requiring witnesses to testify or give evidence You can’t refuse to give evidence unless you can assert a privilege

Privilege Distinguished Privileged Information is confidential information that cannot be introduced into evidence (by testimony or document) in a court proceeding without : - a waiver of the privilege by the client - a court order overriding the privilege - a GAL to waive privilege for a child

Confidentiality Statutes Federal Law Health Insurance Portability and Accountability Act (HIPAA) 45 C.F.R. 164.502(g)(2), (3) Family Education Rights and Privacy Act (FERPA) 20 U.S.C. § 1232g

Confidentiality Statues (cont.) Massachusetts Law Student Records Statutes and Regulation G. L. c. 71, § 34D G. L. c. 71, § 34E 603 C.M.R. 23

Confidentiality Statues (cont.) Department of Children and Families Reports and investigations G. L. c. 119, §§ 51A, 51B, 51E Records 110 C.M.R. 12 Criminal cases 110 C.M.R. 4.53 Medical records of children in custody 110 C.M.R. 11.22

Confidentiality Statues (cont.) Department of Mental Health Record G. L. c. 123, § 36 Department of Developmental Services Records G. L. c. 123B, § 17   Confidentiality of HIV Testing & Results G. L. c. 111, § 70F Records of substance abuse treatment facilities G. L. c. 111B, 111E

Protected Health Care Information HIPPA - federal laws governing access to protected health information HIPPA compliant releases are required to obtain hospital, medical and mental health records Police departments also refuse to release police reports pertaining to medical responses under HIPPA

Getting Protected HIPPA Data from Health Care Providers HIPPA-COMPLIANT RELEASES CLEARY IDENTIFY: WHO IS REQUESTING/RECEIVING THE INFORMATION NAME AND DATE OF BIRTH OF THE CLIENT PURPOSE OF RELEASE (i.e., LEGAL, CUSTODY INVESTIGATION, ETC.) DATES OF RELEVANT SERVICES TYPE OF INFORMATION REQUESTED AUTHORIZATION IS VALID FOR 6 MONTHS OR LESS NOTICE THAT IT CAN BE REVOKED BY CLIENT SIGNED AND DATED BY CLIENT AND WITNESS ADDITIONAL REQUIREMENTS FOR SUBSTANCE ABUSE RECORDS

GAL Investigations are Confidential All information gathered by GAL is confidential (i.e., for the court) and shall not be disclosed to any non-party. Standard 4.6 Standing Order 2-08 effective 3/10/08 GAL reports impounded (unavailable for public inspection and segregated from file) sets forth rule for access to reports by counsel and parties

Standing Order 2-08: Is relief from impoundment needed? YES, except to gather information necessary to complete report and perform duties as GAL. Standard 4.6 Limited exceptions allow GAL’s to report safety concerns. Standards 4.3 and 4.3.1 At all times, maintain an attitude of respect. Standard 4.1

GAL’s Duty to Disclose Safety Concerns GAL shall warn the party, attorneys and police if GAL “believes that a party or child is in danger of imminent physical harm from other party.” Category F Standard 4.3(E); Category E Standard 4.3(F) GAL should report to the police and court with required notice to all parties “if the GAL has reasonable cause to believe the child is in imminent danger”. Standard 4.3.1 Non-mandated GAL’s (i.e., lawyers) have discretion to file 51A reports with DCF to “report suspected abuse or neglect as necessary if a child is at risk.” Standard 4.3.1

Lamb Warnings by GAL Standards 5.1 and 5.3 Lamb warnings required: GAL explains his/her role, purpose of the investigation, process of gathering information, typical sources of information, how information is used and that nothing is “off the record” Lamb warnings must be given to the parties, the children and to all collaterals interviewed

GAL obtains appropriate releases or court orders as needed GAL must obtain appropriate releases or court orders to access confidential and/or privileged information. Standard 4.6.1 Requests for confidential and privileged information should be limited to information GAL believes is reasonably necessary to investigate the facts/issues. See Commentary to 5.3

GAL may access non-privileged information from child’s therapist GAL may obtain releases from the parties to speak with the child’s therapist or obtain information and records pertaining to non-privileged confidential matters. Examples: the frequency and duration of therapy the parents’ contacts and communications with the child’s therapist

Common Statutory Privileges Psychotherapist G. L. c. 233, § 20B Sexual Assault Counselor G. L. c. 233, § 20J Domestic Violence Counselor G. L. c. 233, § 20K Psychologist-Patient Communication G. L. c. 112, § 129A Licensed Social Workers G. L. c. 112, §§ 135, 135A, 135B Allied Mental Health & Human Service Providers G. L. c. 112, § 172 See also, Evidence Rules 503, 505, 506, 507, 514

Determining whether or not a statutory privilege exists Does the treatment provider meet the requirements of the statute? (i.e., requisite degree, license, etc.) Does a client-therapist relationship exist? Is the information protected by the statute? Does an exception apply? Same analysis for other privilege statutes

Non-Statutory Privileges Case Law – allied mental health professionals, i.e., Licensed Mental Health Counselor (LMHC), Rule of Evidence 508 - Commonwealth v. Vega, 499 Mass 227 (2007) Common Law – attorney-client privilege, Rule of Evidence 502 Constitutional – privilege against self-incrimination, Rule of Evidence 511

Waiver of Privilege – Rule of Evidence 523(a),(b) consent/authorization/voluntary disclosure by the holder or his/her legally appointed guardian court order overriding the privilege introducing privileged matter as an element of a claim or defense

Rules of Evidence 523(c) & 524 - Waiver of Privilege is NOT… unintentional disclosures where reasonable precautions were taken erroneous disclosures without an opportunity to assert privilege => children’s therapy records released to GAL by a parent or the parent’s lawyer

Separate GAL required to waive child’s privilege GAL appointment is not enough to access privileged information regarding children even if the therapist wants to provide it or the parents are willing to sign a release or the parent’s counsel has a copy of the child’s treatment records to give you. Standard 4.6.2; See also Standard 5.3 Adoption of Diane, 400 Mass. 196, 201 (1987)

Factors Considered by GAL for Child’s Privilege the child’s express preferences, if any, taking into consideration the child’s age and maturity the nature of the child’s communications to the therapist and the potential impact (risk/benefit analysis) of disclosure on the child and on the therapeutic relationship whether disclosure of the child’s privileged communications would advance or hinder the child’s position in the litigation See “Privilege and Confidentiality” by Amy M. Karp, Esquire, Child Welfare Practice in Massachusetts, pp. 9-37 to 9-39 (MCLE, Inc. 2006 & Supp. 2009).

Other Factors Considered by GAL for Child’s Privilege whether the privileged information is available from any other non-privileged source whether or not any privileged communications sought to be admitted into evidence are relevant and material to the issues being litigated