The issue of privacy and confidentiality in psychiatric records is very important to many consumers. In the course of my practice, I am frequently contacted by individuals who have questions and concerns regarding their psychiatric records. These concerns are far ranging. Questions that are commonly asked about psychiatric records include what are the standards and requirements for confidentiality, whether and in what circumstances an individual may obtain access to his records, and how and when an individual may seal his psychiatric records. What follows is not an exhaustive discussion in this area, but an overview of some of the provisions in New York law on these issues.

Confidentiality of psychiatric records

Under New York law, facilities are held to a high standard of confidentiality with respect to clinical records. Records are presumed to be confidential unless they fall within a category to be disclosed. The Commissioner of the New York State Office of Mental Health may require that statistical information about patients and clients be reported to its offices. However, the names of patients treated at such facilities are

The information reported to such offices are not public records and are not to be released by the office or its facilities to any person or agency outside of the office without the consent of the patient or client except as follows:

* by an order of a court when the court finds that the interests of justice significantly outweigh the need for confidentiality * to the mental hygiene legal service

* to attorneys representing patients or clients in proceedings in which the patients’ or clients’ involuntary hospitalization is at issue

* to the New York State Commission on Quality of Care for the mentally disabled and any person or agency under contract with the commission which provides protection and advocacy services

* to the medical review board of the state commission of correction

* to the State Board of Professional Medical Conduct

* to the State Division of Criminal Justice Services

* to a correctional facility with respect to named inmates

* to a Director of Community Service (as defined in the mental hygiene law)

* to an endangered individual and a law enforcement agency when a treating psychiatrist or psychologist has determined that a patient or client presents a serious and imminent danger to that individual.

Records may also be disclosed with the consent of the patient or client to a person or entity provided that the person or entity has a demonstrable need for the information contained in the records.

An Individual’s Access to His own Records

Individuals frequently wish to review their records for any number of reasons. The general rule is that a patient is entitled to access his clinical record unless such access can reasonably be expected to cause a substantial and identifiable harm to the patient. Otherwise, the record must be provided to such individuals within 10 days of a written request.

Upon the receipt of a request, the facility must inform the treating practitioner of the request. The treating practitioner may review the information requested. If after consideration of all factors, the practitioner determines that the requested review could reasonably be expected to cause substantial and identifiable harm to the patient, client or others, the facility may deny access to all or a part of the record and may grant access to a prepared summary of the record.

In practice, practitioners frequently attempt to deny access to records by current and former patients. Paternalistic attitudes on the part of practitioners lead to denials of access. Therefore, it is important to scrutinize the reasons for denial of access to determine if the standard of substantial and identifiable harm has been met.

If access to a record is denied, a patient has the right to appeal for review by the Clinical Records Access Review Committee. A client must be notified by the facility of his right to a review of the denial by the appropriate clinical record access review committee. If the client requests this review, the facility must within ten days of the request, transmit the record to the chairman of the appropriate committee with a statement setting forth the specific reasons access was denied. If access is denied by the records access review committee, a patient has a right to seek judicial review of this denial. Court review must be commenced within 30 days of receiving notification of the committee decision.

An individual may also challenge the accuracy of the information maintained in his clinical record and may require that a brief written statement prepared by him concerning the challenged information be inserted into the clinical record. This statement must become part of the permanent part of the record and be released whenever the clinical record at issue is released. The information to be challenged can be only factual statements and does not include a provider’s observations, inferences or conclusions.

Sealing of Psychiatric Records

There is a little used provision in New York law which allows former patients of mental health services to have their records sealed by a court of law. Any person who has been admitted to receive inpatient or outpatient services for mental illness may commence a court proceeding for an order directing the sealing of those records held by the OMH, a facility, or any other individual or public or private entity which has been made a party to the proceeding.

The court may seal the petitioner’s records if it finds that competent medical evidence shows that the petitioner is not currently suffering from a mental illness, that he has not received inpatient services for the treatment of mental illness in the last three years, and that the interests of petitioner and society would best be served by sealing the records. It is presumed to be in the best interests of the petitioner and society to seal any record of petitioner’s receipt of services for the treatment of mental illness prior to his sixteenth birthday.

The court may also order the records be sealed if it finds that the petitioner was illegally detained by a facility by reason of fraud, error, or falsified documents and the records pertain to this illegal detention.

The sealing of records allows for two things. First, the OMH, a facility, or other individual or entity required to seal records must respond to an official or unofficial inquiry concerning the petitioner’s history of mental illness as though the admission or receipt of services documented in the sealed records had never occurred. Second, the petitioner who has an order sealing his records may respond to any official or unofficial inquiry by any person or agency concerning his history of mental illness as though the admission or receipt of services documented in the records never occurred.

For information concerning access to records, confidentiality or sealing of records, or for other questions concerning the mental health laws, please contact the PAIMI (Protection and Advocacy for the Mentally Ill) program at Neighborhood Legal Services, 716/847-0650.