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CASA Workshop on Confidentiality

Author & Workshop Presenter: Judith Larsen, J.D.
Reprinted from: 14th National CASA Conference, supplemental presentation material

When you are seeking records and you come up against the barrier of "confidentiality," try simple strategies before taking more formal, complex steps.

Obtain consent:

From the child's attorney, if there is one from the mother, either through her direct agreement (if you are allowed to speak with her), or through her attorney (if she has one), or through your attorney from the father, (as above, with mother) if he is the custodial parent

NOTE: CASA volunteers should have on hand blank consent forms from all of the local hospitals so that when an adult is willing to consent, the right form can be presented on the spot.

Obtain court order for child's records:

Ask the court for an order directing the hospital (or school, or other institution that raises  confidentiality barrier) to release the to you -- or (if the court or your local child's rules require going through an attorney) to the attorney for the child, the prosecutor, or the records: child protection agency.

The request to the Court would be made in accordance with CASA training, and in compliance with local practice. That means that in some states the CASA may ask for the order in open court during a regularly-scheduled court hearing, or the CASA's attorney may request the order in chambers, or the request may come through the government attorney or the child's attorney.

Negotiate for parent's records:

Ask the government's attorney or the child's attorney if they will attempt to obtain consent of the parent to look at the parent's records (usually drug-alcohol; hospital) Call a meeting of attorneys and the social worker to see if you can develop a stipulation that includes consent to obtain records. Parents would have to sign it. Parents would have to sign such a stipulation.

NOTE: This step can be combined with a negotiation for the child's records.

Obtain court order for parents records

This step can be combined with a negotiation for the child's records. There are a number of federal laws that protect the confidentiality of records relating to treatment for mental health or drug and alcohol abuse. Such laws become a baseline and are then incorporated into state laws. States cannot create a law that is less strict than the Federal law, but they can create a law that is more strict.

To determine which law applies, a lawyer will look first at the state laws on confidentiality. Federal laws would be consulted if the state had no applicable law on confidentiality (because then, the federal law would apply) or to make certain that no requirement in the federal law was overlooked in the state law (because, again, then the federal law would cover the omissions).

Confidentiality of treatment records can always be broken if necessary to prove child abuse and neglect. "If necessary" is an important exception. Before launching a campaign to obtain a parent's treatment records, the CASA should ask:

"Do I really need these records?"
"Is there any other way to obtain this information?”

The court will not be interested in helping the CASA go on a fishing expedition just to see what damaging information might turn up. Therefore, the CASA will want to develop specific goals. For example:

Is this parent sufficiently clean and sober to care for this infant?”

"Will this child be in danger living in a home where the mother has a diagnosis of schizophrenia? Does the mother take her medicine? Does she have frequent relapses? Is she violent?" 

Then the CASA should ask whether this is information that could be obtained in a court hearing through witnesses, or other documents, or perhaps in a stipulation, by agreement. Don't overlook that attorneys have "discovery" tools: interrogatories (which are written questions and answers) and depositions (meetings, which are recorded, where lawyers ask questions of witnesses).

If all of the other options will not produce the needed information (or not produce it in a timely, or economical way) then it may be time to go to court to obtain an order. Be prepared for an outcome that releases only parts of the record, and only to those participants in the case whom the court decides "need to know”. The CASA may not be one of those selected to look directly at the records.

Many judges will have had no experience with confidentiality laws, and it will be helpful if the CASA can point out the relevant laws to the requesting attorney (or to the Court itself, if that is how matters are handled in your court.)

For example, two federal laws control access to drug and alcohol treatment records:

1. The Drug Abuse Office and Treatment Act of 1972, 42 U.S.C., sec.290ee-3; and

2. The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970, 42 U.S.C. sec.290dd-3.

These laws, and the regulations that interpret the laws at 42.C.F.R. 63 (1990), direct the judge to take the following steps:

1. Determine if the state has stricter prohibitions against disclosure than do the federal laws.

2. Determine if the record originates in a treatment "program" as defined in the law.

3. Determine if disclosure is warranted, or whether there are other effective ways of obtaining the information.

4. Assure that adequate notice has been given to both the person tested and the holder of the record.

5. Assure that both the person tested and the record holder have an opportunity to file written responses and to appear in person to argue their positions.

6. Assure that mental health reports are not disclosed to a non-party. Ascertain whether arguments should be in-chambers, rather than in open court, and whether the records should be sealed.

The judge may decide to make this inquiry in chambers, rather than in open court. Whether or not the records are released will depend on whether the judge thinks that the information would have such bearing on suspected child abuse or neglect that it would outweigh the injury to the patient. The judge may release as much or as little of the records as seems relevant -- and give them only to people who "need to know."

Case Study on Confidentiality

Ms. Carlotta Smith, who is 23 years old, gave birth to a son, Jamie, at City Hospital. Jamie was premature and weighed only 4 1/2 lbs. The CASA, Mr. Joseph Rising Moon, saw Jamie one week after birth in the hospital. At that time Jamie appeared to have diarrhea, be highly irritable, and trembling.

Ms. Smith has three other children who are all part of an ongoing neglect case and are all in foster homes.

Mr. Rising Moon also is the CASA for those three Smith children.

In the case of Jamie, the newborn, there already has been an initial hearing in court. The prosecutor successfully argued that there was probable cause to believe that Jamie was in "imminent danger" of being abused if he went home with his mother. (This state's law defines "abuse" to encompass children who have either suffered harm, or are in "imminent danger" of suffering harm.) NOW there is going to be a trial.

In this case, Ms. Smith, the mother, is represented by very aggressive and hostile counsel, Ms. Agatha Trenton.

The infant is represented by Mr. Rising Moon, who is a CASA, and not a lawyer.

The social worker, Ms. Maria Hermosa, is new to this work and very defensive about sharing information with Mr. Rising Moon.

The social service agency is represented by counsel, Mr. Jeb Newheart, who is overworked and difficult to reach by telephone or to talk to in court.

Mr. Rising Moon can call on the services of an attorney in private practice who advises all CASA’s in this program, but in general CASA’s in this program are discouraged from calling on the attorney, and encouraged to use their negotiation skills to obtain what they need.

Mr. Rising Moon knows that the mother enrolled in drug treatment two years ago. He also knows that the judge ordered a psychiatric assessment of mother to be performed after she had de-toxed and achieved sobriety. He believes that the assessment was performed, and that subsequently she engaged in mental health therapy.

What Mr. Rising Moon does not know, and feels that he needs to establish for the court is:

1. Child's medical records: Whether infant Jamie's medical records establish that he was exposed to drugs during pregnancy and currently is suffering from the effects.

2. Mother's drug treatment records: Whether mother engaged in drug treatment, remained in good compliance with it, whether she was discharged clean and sober from the program, and whether she currently is engaged in any out-patient follow-up program.

3. Mother's mental health records: Whether the mother's psychiatric assessment gave a particular diagnosis, whether the psychiatric assessment addressed her ability to parent, and whether she accepted any recommended mental health therapy and remained in compliance with it (or was discharged from it as no longer in need.)

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