Interest Groups

A child's mental health records may be open to parties in custody battle even if doctor objects - Family Law News

Get the news you want the way you want it: click the RSS button in the right corner to add this feed to your RSS reader, or click here to subscribe to this content. By subscribing, you’ll find this news on your Member Account page, and the latest articles will be emailed to you in your customized IndyBar E-Bulletin e-newsletter.

Family Law News


Posted on: Oct 4, 2016

By Richard A. Mann, Richard A. Mann PC

The Indiana Court of Appeals in Meridian Health Services Corporation v. Thomas Martin Bell just ruled that a provision of Indiana Law that allows a mental health professional to deny the patient access to his or her records does not apply to a parent obtaining those records.

This was a custody and parenting time case where Father was seeking access to the child’s mental health records. The counselor in this case obtained a letter from a medical doctor stating that it was “medically necessary that the records of [the child's] therapy sessions not be released to her parents.” The doctor and counselor took the position that I.C. 16-39-2-4 prevented the release of the records based upon the providers’ opinions.

The counselor failed to appear at a deposition and produce the records as Meridian Health had filed a motion to quash the subpoena 3 days before the deposition. The court had not yet ruled on the motion to quash. Father filed a motion for rule to show cause and the court held a hearing on all pending motions. The court denied Meridian's motion to quash and for a protective order and father subpoenaed the counselor for deposition again. The counselor again failed to appear at the deposition with the records and Meridian then filed the records with the court and asked the court to hold them under seal pursuant to Indiana Administrative Rule 9(G)(2). Importantly, the physician supporting the refusal to release the records testified that it was the "standard position of pediatricians" that the child’s words should be protected when there was conflict between the child’s parents. The trial court ordered that the attorneys could review the records in camera but subsequently ordered that the counsel could copy the records.

On appeal Meridian argued that either I.C. 16-39-2-4 supported its refusal to release the records, or the release was prevented by HIPAA. The Court of Appeals found under HIPAA there are 3 exceptions to the general rule that health care providers may release records to the parents but that none of those exceptions applied. The court went on to find that I.C. 16-39-2-4 only applies to a provider's denial of access to records to the patient and a parent has access to the records unless there is a court order limiting such. The trial court ordered Meridian to pay attorneys’ fees and found that Father should not have had to file the various legal pleadings to obtain the records as he was allowed those records under Indiana law but that he was not to disclose the information to the child. The court of appeals affirmed the trial court.

It has commonly been believed by many in the mental health community and the legal community that Meridian’s position was correct as far as the release of the records. In advising clients who are parents or providers, counsel should read this case carefully and review the citied material in the case as while the Father was given the records in this case there may be other ways hinted at in the opinion to protect the information if that is your client’s position. Seeking a good medical cause that is specific to the patient for refusing to release the records is one place to start.

In affirming the award of attorneys' fees the court referenced the trial court’s finding about Meridian filing of the motion to quash shortly before the deposition and then not appearing for the deposition when the court had not granted or ruled upon the motion. The court made clear that the counselor was required to appear and put their objection on the record. You cannot simply choose to ignore the subpoena without court order.

If you would like to submit content or write an article for the Family Law Section page, please email Kara Sikorski at ksikorski@indybar.org.

DID YOU KNOW?

Indianapolis Bar Association (IndyBar) est. 1878 | 4,536 Members (as of 2.11.21)