§ 5100.33. Patient’s access to records and control over release of records.

 (a)  When a client/patient, 14 years of age or older, understands the nature of documents to be released and the purpose of releasing them, he shall control release of his records. For a client who lacks this understanding, any person chosen by the patient may exercise this right if found by the director to be acting in the patient’s best interest. In the event that the client/patient is deceased, control over release of records may be exercised by the client’s/patient’s chosen executor, administrator or other personal representative of his estate, or, if there is no chosen personal representative, by a person otherwise empowered by court order to exercise control over the records. In the event that the client/patient is less than 14 years of age or has been adjudicated legally incompetent, control over release of the client’s/patient’s records may be exercised by a parent or guardian of the client/patient respectively.

 (b)  The term ‘‘access’’ when used in this section refers to physical examination of the record, but does not include nor imply physical possession of the records themselves or a copy thereof except as provided in this chapter.

 (c)  A person who has received or is receiving treatment may request access to his record, and shall be denied such access to limited portions of the record only:

   (1)  Upon documentation by the treatment team leader, it is determined by the director that disclosure of specific information concerning treatment will constitute a substantial detriment to the patient’s treatment.

   (2)  When disclosure of specific information will reveal the identity of persons or breach the trust or confidentiality of persons who have provided information upon an agreement to maintain their confidentiality.

 (d)  A patient may obtain access to his records through the facility, or in the case of those records kept by the county administrator, through the physician or mental health professional designated by the administrator. Any third parties who are granted access to records may discuss this information with the patient only insofar as necessary to represent the patient in legal proceedings or other matters for which records have been released. Discussion of records with patients should be part of the therapeutic process and is not to be undertaken by other than mental health professionals.

 (e)  The limitations in subsection (c) are applicable to parents, guardians, and others who may control access over records as described in subsection (a) except that the possibility of substantial detriment to the parent, guardian, or other person may also be considered.

 (f)  If a person wishes to enter a written reaction qualifying or rebutting information in their records which they believe to be erroneous or misleading, they shall have the right to prepare such statement for inclusion as part of their record. The patient’s written reaction shall accompany all released records.

 (g)  The director of the treatment team or the facility director may require that a mental health professional, who is a member of the treatment team, and who has reviewed the record in advance, be present when the patient or other person examines the record to aid in the interpretation of documents in the record. If the records pertain to a former patient, an appropriate mental health professional may be designated by the facility director.

 (h)  Access to presentence reports, which may be part of the persons’ records, is governed Pa.R.Crim.P. No. 1404 (relating to disclosure of reports), and the patient may have access to these records only upon order of the sentencing judge. Any conditions of confidentiality imposed by the sentencing judge must be complied with. Similarily, parole and probation reports shall be released or access to them given only in accordance with 37 Pa. Code Part II (relating to Board of Probation and Parole).

 (i)  If a person is denied access to all or part of his record, this fact and the basis for the denial shall be noted in the person’s record.

 (j)  When records or information have been forwarded from one agency to another agency, the receiving agency may not refuse the client or patient access to the records received except in accordance with subsection (c). Records received from other agencies become part of the client/patient’s active record and are subject to the controls exercised over them by the client, patient, or those with authority over records as defined in §  5100.31 (relating to scope and policy).

Notes of Decisions

   Patient access to whatever record was made of commitment hearing, in the form it exists, is a minimal requirement to comport with procedural due process. In re S.O., 492 A.2d 727 (Pa. Super. 1985).

Cross References

   This section cited in 55 Pa. Code §  3800.20 (relating to confidentiality of records); 55 Pa. Code §  5100.4 (relating to scope); 55 Pa. Code §  5100.31 (relating to scope and policy); 55 Pa. Code §  5100.34 (relating to consensual release to third parties); 55 Pa. Code §  5200.41 (relating to records); 55 Pa. Code §  5200.47 (relating to other applicable regulations); 55 Pa. Code §  5210.26 (relating to records); 55 Pa. Code §  5210.56 (relating to other applicable regulations); 55 Pa. Code §  5221.52 (relating to notice of confidentiality and nondiscrimination); 55 Pa. Code §  5230.17 (relating to confidentiality); and 55 Pa. Code §  5320.26 (relating to confidentiality).



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