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On November 20, 2019, the Pennsylvania Supreme Court ruled for our client, holding that the client’s inpatient mental health diagnosis and treatment records obtained via subpoena by the Fortieth Investigating Grand Jury (“the Grand Jury”), could not be published in a public Grand Jury Report.  The Court’s decision scored a major victory for confidentiality of mental health treatment records throughout Pennsylvania, and implicitly recognized the existence of a “limited waiver” in certain circumstances.

In the case of In re 40th Investigating Grand Jury: Petition of R.M.L., J-110-2018, No. 85 WM 2018 (Pa. Nov. 20, 2019), a third-party, our client’s employer, turned over our client’s privileged mental health records to the Attorney General’s office in response to a state Grand Jury subpoena.  Our client had in fact executed a very limited release authorizing to share his treatment records with his employer, but only under a very specific set of circumstances and only for a specific purpose.

As its investigation ended, the Grand Jury prepared to publicly release portions of the confidential health treatment records, including therapist’s notes and diagnoses from our client’s private sessions.

Under great time pressure, we moved for an order from the Grand Jury’s Supervising Judge directing the State to redact our client’s confidences recorded in the inpatient mental health records.  We argued that to publish such information constituted a violation of the Pennsylvania Mental Health Procedures Act (“MHPA,” or “the Act”), 50 P.S. § 7101 et seq., the psychologist-patient privilege, 42 Pa. C.S. § 5944, and our client’s right to privacy secured by the United States and Pennsylvania Constitutions.  We also told the Judge that our client’s very limited release for the records, issued years before for a very specific, unrelated reason, was limited in scope and purpose, and did not abrogate statutory and constitutional privacy protections of the personal health information in the records.  The Supervising Judge ruled against us, relying on the waiver, thus rejecting the right to be secure in the privacy of one’s own mental health treatment records.  For the Judge, our client’s employer’s production to the Grand Jury of our client’s mental health treatment records was secondary to the authority of the waiver (without reference to its limited scope), and thus it was permitted to “disseminate the records as it deemed necessary.”  In re 40th Investigating Grand Jury: Petition of R.M.L., J-110-2018, at *4.

We sought relief before the Commonwealth’s Supreme Court.  Without hearing argument, the Court extensively analyzed the MHPA and determined that it permitted disclosure of mental health treatment records only in certain limited instances listed in the Act, none of which were applicable.  The Supreme Court upheld the protections against disclosure to third parties except and only where the patient explicitly gives his or her consent via a release with clear language manifesting the patient’s intentions to waive the confidentiality protections which Pennsylvania affords to mental health treatment records.

Interpreting the scope of the release and confidentiality waiver, the Court wrote that “given the strong legislative policy reflected in [the Act] to keep mental health records confidential, implicit waiver of this privilege is disfavored.”  In re 40th Investigating Grand Jury: Petition of R.M.L., J-110-2018, at *15.  Indeed, the Court recognized that

given the manifest legislative policy to shield confidential mental health treatment records from public view embodied in [the Act], where there is a written waiver implicating [the Act], we find that we must strictly construe such a waiver. 

Id. at *16.

The Court further explained that the purpose for which a privilege has been waived is determinative of the scope of that waiver in subsequent legal proceedings. . . the fact that a privilege has been narrowly waived for a discrete purpose counsels against construing it as a general waiver for all unrelated purposes.

Id.

Applying this framework, the Supreme Court ruled for our client, finding that the waiver our client executed more than twenty (20) years prior to the Grand Jury’s investigation allowed disclosure of his confidential inpatient mental health treatment records only to the select party(s) identified in the waiver itself, for that party’s purpose, and not to the public at large.  The Court determined “that a contrary holding would be repugnant to the notion of privacy embodied in [the MHPA],” Id. at 18, and ordered that our client’s confidential mental health treatment records be permanently redacted from the public Report.

We are gratified that the Supreme Court reaffirmed and heightened the protection which Pennsylvania law places on confidentiality in mental health treatment records.  The Court also tacitly established the existence of a limited waiver in certain narrow circumstances, at least as to involving the disclosure of mental health treatment records.  Separate and apart from the victory for our client, as a matter of public policy, we believe patients’ personal mental health records should and must be sacrosanct and that possession of them by a third party carries with it a responsibility to protect their confidentiality.  While time will tell the precedential impact of this decision, it could create an expanded basis for individuals to more broadly assert a limited waiver in other privilege disputes.