May 2, 2013, Introduced by Senators GREEN, HILDENBRAND, ROBERTSON, MARLEAU, JONES and BRANDENBURG and referred to the Committee on Judiciary.
A bill to amend 1974 PA 258, entitled
"Mental health code,"
by amending section 748 (MCL 330.1748), as amended by 1998 PA 497.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 748. (1) Information in the record of a recipient, and
other information acquired in the course of providing mental health
services to a recipient, shall be kept confidential and shall not
be open to public inspection. The information may be disclosed
outside the department, community mental health services program,
licensed facility, or contract provider, whichever is the holder of
the record, only in the circumstances and under the conditions set
forth in this section or section 748a.
(2) If information made confidential by this section is
disclosed, the identity of the individual to whom it pertains shall
be protected and shall not be disclosed unless it is germane to the
authorized
purpose for which disclosure was sought.
; and, when
When practicable, no other information shall be disclosed unless it
is germane to the authorized purpose for which disclosure was
sought.
(3) An individual receiving information made confidential by
this section shall disclose the information to others only to the
extent consistent with the authorized purpose for which the
information was obtained.
(4) For case record entries made subsequent to March 28, 1996,
information made confidential by this section shall be disclosed to
an adult recipient, upon the recipient's request, if the recipient
does not have a guardian and has not been adjudicated legally
incompetent. The holder of the record shall comply with the adult
recipient's request for disclosure as expeditiously as possible but
in no event later than the earlier of 30 days after receipt of the
request or, if the recipient is receiving treatment from the holder
of the record, before the recipient is released from treatment.
(5) Except as otherwise provided in this section or section
748a, when requested, information made confidential by this section
shall be disclosed only under 1 or more of the following
circumstances:
(a)
Pursuant According to an order or a subpoena of a court of
record or a subpoena of the legislature, unless the information is
privileged by law.
(b) To a prosecuting attorney as necessary for the prosecuting
attorney to participate in a proceeding governed by this act.
(c) To an attorney for the recipient, with the consent of the
recipient, the recipient's guardian with authority to consent, or
the parent with legal and physical custody of a minor recipient.
(d) If necessary in order to comply with another provision of
law.
(e) To the department if the information is necessary in order
for the department to discharge a responsibility placed upon it by
law.
(f) To the office of the auditor general if the information is
necessary for that office to discharge its constitutional
responsibility.
(g) To a surviving spouse of the recipient or, if there is no
surviving spouse, to the individual or individuals most closely
related to the deceased recipient within the third degree of
consanguinity as defined in civil law, for the purpose of applying
for and receiving benefits.
(h) To the national instant criminal background check system,
in accordance with federal law, information relating to eligibility
to receive or possess a firearm according to state or federal law.
(6) Except as otherwise provided in subsection (4), if consent
is obtained from the recipient, the recipient's guardian with
authority to consent, the parent with legal custody of a minor
recipient, or the court-appointed personal representative or
executor of the estate of a deceased recipient, information made
confidential by this section may be disclosed to all of the
following:
(a) A provider of mental health services to the recipient.
(b) The recipient or his or her guardian or the parent of a
minor recipient or another individual or agency unless in the
written judgment of the holder the disclosure would be detrimental
to the recipient or others.
(7) Information may be disclosed in the discretion of the
holder of the record under 1 or more of the following
circumstances:
(a) As necessary in order for the recipient to apply for or
receive benefits.
(b) As necessary for the purpose of outside research,
evaluation, accreditation, or statistical compilation. The
individual who is the subject of the information shall not be
identified in the disclosed information unless the identification
is essential in order to achieve the purpose for which the
information is sought or if preventing the identification would
clearly be impractical, but not if the subject of the information
is likely to be harmed by the identification.
(c) To a provider of mental or other health services or a
public agency, if there is a compelling need for disclosure based
upon a substantial probability of harm to the recipient or other
individuals.
(8) If required by federal law, the department or a community
mental health services program or licensed facility shall grant a
representative of the protection and advocacy system designated by
the governor in compliance with section 931 access to the records
of all of the following:
(a) A recipient, if the recipient, the recipient's guardian
with authority to consent, or a minor recipient's parent with legal
and physical custody of the recipient has consented to the access.
(b) A recipient, including a recipient who has died or whose
location is unknown, if all of the following apply:
(i) Because of mental or physical condition, the recipient is
unable to consent to the access.
(ii) The recipient does not have a guardian or other legal
representative, or the recipient's guardian is the state.
(iii) The protection and advocacy system has received a
complaint on behalf of the recipient or has probable cause to
believe based on monitoring or other evidence that the recipient
has been subject to abuse or neglect.
(c) A recipient who has a guardian or other legal
representative if all of the following apply:
(i) A complaint has been received by the protection and
advocacy system or there is probable cause to believe the health or
safety of the recipient is in serious and immediate jeopardy.
(ii) Upon receipt of the name and address of the recipient's
legal representative, the protection and advocacy system has
contacted the representative and offered assistance in resolving
the situation.
(iii) The representative has failed or refused to act on behalf
of the recipient.
(9) The records, data, and knowledge collected for or by
individuals or committees assigned a peer review function,
including the review function under section 143a(1), are
confidential, shall be used only for the purposes of peer review,
are not public records, and are not subject to court subpoena. This
subsection does not prevent disclosure of individual case records
pursuant
to under this section.
(10) The holder of an individual's record, if authorized to
release information for clinical purposes by the individual or the
individual's guardian or a parent of a minor, shall release a copy
of the entire medical and clinical record to the provider of mental
health services.