InvisALERT Solutions – ObservSMART

Addressing the Needs of Caregivers

All too often, the severely mentally ill do not have family or friends involved in their care to act as a vital support system when they become symptomatic. For those people who are lucky enough to have supportive family and friends, those support people are often, and validly so, frustrated with their inability to obtain information or make critical decisions when they know their loved one is psychiatrically decompensating. As an attorney representing psychiatric facilities, families and individuals, I have had countless conversations with family members expressing their aggravation over the fact that hospital staff or mental health professionals are legally barred from speaking with them about a patient. On the other hand, patient confidentiality, and the confidentiality of all medical information, is the right of every patient, whether they are being treated for a medical or psychiatric condition. Hence, a delicate balancing act takes place weighing the patient’s right to confidentiality with the family’s desire and need to obtain information so they can help in the healing process.

This article will examine the present state of the law as it relates to the confidentiality of patient information. It will also discuss ways in which supportive family and friends can act in advance to better facilitate the flow of information. Lastly, the article will take a critical look at the law, suggesting potential compromise and change that can achieve the dual goal of maintaining patient confidentiality as well as the need to include family and friends in the process.

In 1996 Congress passed the Heath Insurance Portability and Accountability Act, better known by its acronym, HIPAA. While the law accomplishes other tasks, for our purposes HIPAA created a federally protected right in the confidentiality of medical records. After the law’s passage, the unauthorized release of general medical records became a federal offense. Hence, pursuant to HIPAA hospitals and mental health professionals are barred from sharing any medical information with family or friends unless the patient has specifically provided consent for the release of these records.

Well before HIPAA was enacted, any facility providing mental health services in New York State was controlled by the confidentiality requirements of the Mental Hygiene Law. The Mental Hygiene Law not only prevents hospitals from providing medical information to others, including family, it also prevents hospitals from disclosing whether or not a particular individual is even a patient in their facility.

In addition, New York law provides for discretion to clinical providers when it comes to the release of psychiatric records to a patient or family. An inpatient treating psychiatrist can deny a patient access to their own records if in the treating psychiatrist’s opinion providing these records would be harmful to the patient’s continued treatment. Moreover, a treating psychiatrist is given the same discretion with respect to providing treatment records to family, friends, or any other individual the patient wishes to provide his or her medical records to, if in the view of the treating psychiatrist it would not be in the best interest of the patient. The law allows for an elaborate appeal procedure to the Office of Mental Health (“OMH”) if the patient or the family member believes they were wrongly denied access to records.

With a Health Care Proxy and Power of Attorney for health care decision making, a mentally ill individual can provide advance authorization to allow access to his or her medical records. However, these advance directives will only remain valid with respect to the release of records if the mentally ill individual does not explicitly deny access to their records. In other words, these directives are void if the patient prohibits access. The only way to nullify a patient’s refusal to allow access to records is if the individual is judicially found to be incapacitated and a guardian is appointed. A guardian generally is empowered to access the patient’s records.

Despite some limitations of advance directives, it is an easy and minimally restrictive process that will allow access to records in most circumstances. Additionally, it requires only that the mentally ill individual execute a form, and unlike the guardianship process, it does not require a legal proceeding and a judicial determination of incapacity.

It should always be known that while a hospital or practitioner may not be able to provide information to family, nothing prevents a treatment provider from listening to information that family and friends may have.

In terms of decision making, neither a Health Care Proxy, nor a Guardianship, will allow a surrogate decision maker the right to make psychiatric treatment decisions for a mentally ill person. The Courts have been quite clear that only a court, conducting a hearing on the specific facts, can make that decision.

One recent change to the Mental Hygiene Law requires all mental health and developmental disability treatment facilities to notify family in cases of incidents of abuse or injury. The law is commonly known as “Jonathan’s Law.” It is titled after Jonathon Carey, a profoundly developmentally disabled boy, who died when put into restraints while at a state facility. Jonathan’s parents, suspicious of their son’s maltreatment, attempted to obtain records of his care and were repeatedly denied. While the Law was mainly aimed at notifying parents of disabled children of incidents of abuse, the law is equally applicable to psychiatric facilitates providing care to mentally ill adults. Jonathan’s Law requires psychiatric facilities to notify the parents, spouse or adult child of a patient if they are injured.


The law in the area of confidentiality attempts to balance very strong competing interests of family access and confidentiality. Due to the effects mental illness has on one’s capacity, allowing additional access to family and friends would often be of great benefit. This can be accomplished by allowing a Health Care Proxy, or other advance directive, to remain valid, at least with respect to access of records, even during periods where the patient explicitly denies access. Additionally, since guardians are allowed the authority to make the most serious of medical decisions, including surgery, they likewise should be allowed to make psychiatric decisions in certain circumstances. These changes, while still respecting patient confidentiality, will allow truly committed family members needed access.

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