Request By:
Mr. Howard F. Bracco
President/Chief Executive Officer
Seven Counties Services, Inc.
137 West Muhammad Ali Blvd.
Louisville, Kentucky 40202-1429
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
You have requested an opinion from this Office on a question arising under the Open Records Act. Specifically, you ask whether the statutory confidentiality protections applicable to psychiatric treatment records continue to apply after those records have been disclosed to a county coroner pursuant to KRS 72.415. Alternatively, you ask whether KRS 61.878(1)(j), the Open Records Act exemption that incorporates confidentiality provisions elsewhere in the Kentucky Revised Statutes, makes those confidentiality provisions binding on public agencies such as a county coroner.
You explain that Seven Counties provides mental health counseling to persons in Jefferson County and surrounding counties, and that its patient records are protected by KRS 421.215, the psychiatrist-patient privilege, and KRS 319.111, the psychologist-patient privilege. In the wake of a series of violent crimes which have culminated in the deaths of the perpetrators, many of whom were, coincidentally, undergoing psychiatric treatment, the county coroner has exercised his prerogative, pursuant to KRS 72.415(1), to compel the release of their records of treatment in investigating their deaths. You express concern that those psychiatric records which come into the possession of the county coroner may lose the protections afforded by KRS 319.111 and KRS 421.215, and be released to the public, thereby compromising patient treatment. It is your position that the threat of public disclosure of these records "causes great anxiety among patients, and often interferes with their treatment." You therefore ask whether the county coroner should make a deceased person's psychiatric treatment records public in response to an open records request or whether the statutory protections contained in KRS 421.215 and KRS 319.111 prohibit such disclosures.
As you correctly note, this Office has previously opined that an individual's privacy rights expire upon his or her death. OAG 82-590; OAG 88-2. Accordingly, KRS 61.878(1)(a), which excludes from inspection "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy," is inapplicable to a deceased person's records of psychiatric treatment. Nor do any other exception to the Open Records Act apply to those records. We therefore concur with you in your belief that the records are excepted, if at all, by operation of KRS 61.878(1)(j), which incorporates by reference KRS 421.215 and KRS 319.111.
KRS 421.215 provides, in part:
(2) Except as hereinafter provided, in civil and criminal cases, in proceedings preliminary thereto, and in legislative and administrative proceedings, a patient, or his authorized representative, has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient's mental condition between patient and psychiatrist, or between members of the patient's family and the psychiatrist, or between any of the foregoing and such persons who participate, under the supervision of the psychiatrist, in the accomplishment of the objectives or diagnosis or treatment.
(3) There shall be no privilege for any relevant communications under this section:
(a) When a psychiatrist, in the course of diagnosis or treatment of the patient, determines that the patient is in need of admission to or commitment to a hospital for care of the patient's mental illness;
(b) If a judge finds that the patient, after having been informed that the communications would not be privileged, has made communications to a psychiatrist in the course of a psychiatric examination ordered by the court provided that such communication shall be admissible only on issues involving the patient's mental condition;
(c) In a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or after the patient's death, when said condition is introduced by any party claiming or defending through or as a beneficiary of the patient, and the judge finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychiatrist be protected.
Similarly, KRS 391.111 provides:
The confidential relations and communications between licensed psychologists or certificate holders and their clients are placed upon the same basis as those provided by the law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communications to be disclosed.
The psychologist-client privilege does not contain the statutorily prescribed exceptions of KRS 421.215, but, like the attorney-client privilege, it "is not absolute, . . . there are in special conditions limitations particularly where the act in question or the communication cannot be said to fall within the scope of the professional employment."
Tabor v. Commonwealth, Ky., 625 S.W.2d 571, 573 (1982), citing
Hughes v. Meade, Ky., 453 S.W.2d 538 (1980). For purposes of this analysis, the privileges will be treated as one since the logic of their principles is one and the same.
The traditional rationale advanced by proponents of the privilege is "the encouragement thereby given to the patient freely to disclose all matter which may aid in the diagnosis and treatment" of his illness. McCormick on Evidence, Sec. 11, p. 244 (3d ed.). Echoing this view, the Kentucky Court of Appeals has stated:
Confidentiality is essential if psychiatrists are to be in a position to successfully treat their patients. A thorough understanding of the patient's problems and feelings must be divulged if treatment is to be appropriate and effective. The legislature has seen fit to make such communications privileged. The privilege granted in KRS 421.215 is absolute in the absence of the legislated and recognized exceptions.
Amburgey v. Central Kentucky Regional Mental Health Board, Inc., Ky.App., 663 S.W.2d 952, 953 (1983).
In OAG 89-62, this Office was asked to determine whether a hospital must release a decedent's medical records, including his records of psychiatric treatment, which are generally shielded from disclosure by the cited privileges, in response to a coroner's subpoena, issued under authority of KRS 72.415(1). That statute provides in part:
For the purpose of enforcing the provisions of KRS 72.410 to 72.470, coroners and deputy coroners shall have the full power and authority of peace officers including the power . . . to require the production of medical records, books, papers, documents or other evidence. . . .
There we held that a hospital must produce medical and psychiatric records of a decedent, reasoning:
To the extent a privilege is present as between patient and psychiatrist, or the patient's authorized representative, as provided by KRS 421.215, that privilege is abrogated regarding a deceased person, by the specific statutory authority of a coroner to require production of medical records in a death case. KRS 72.415(1).
OAG 89-62, at p. 2. We did not, however, reach the question which you raise in your letter to this Office.
In the same opinion, we recognized:
There is a compelling state and public interest in having a proper determination of cause of death. It would be unreasonable to conclude that a non-disclosure privilege concerning psychiatric treatment of a deceased, extends to frustrating the efforts of a coroner acting pursuant to specific statutory authority in a death investigation.
While at least one legal scholar has speculated that Kentucky's courts would be inclined to observe a "death limitation" on the exercise of medical and psychiatric privileges, we do not subscribe to this view. Smith, "Medical and Psychotherapy Privileges and Confidentiality: On Giving With One Hand and Removing With the Other," 75 Ky.L.J. 473 (1986-87). Rather, it is our opinion that the courts have demonstrated their unwillingness to carve out judicial exceptions in the absence of the legislated and recognized exceptions, or otherwise encroach on the privileges granted by KRS 421.215 and KRS 319.111.
As you note in your letter to this Office, the language of KRS 421.215(2)(c), strongly suggests that the General Assembly intended to afford continued recognition to the psychiatrist-patient privilege after the death of the patient. That statute provides:
In a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient's death, when said condition is introduced by any party claiming or defending through or as a beneficiary of the patient, and the judge finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychiatrist be protected.
(Emphasis added.) Unless the conditions specified in KRS 421.215(2) (c) are met, the privilege survives the patient's death.
The proposed Kentucky Rules of Evidence retain this exception, but do not incorporate the qualifying language which vests the judge with discretion to compel disclosure of privileged communications if "it is more important to the interests of justice." KRE 507(c)(3). The commentary to that section provides:
This language is . . . inconsistent with the concept of waiver, which underlies this exception. On the other hand, the privilege should not be deemed waived unless a party is in fact relying on his mental condition as an element of a claim or defense. Prior caselaw which implies a lesser standard is disapproved. (Citation omitted.)
The concept of waiver is thus refined, suggesting that the privilege is absolute.
Although there are no Kentucky cases directly on point, in
Amburgey v. Central Kentucky Regional Mental Health Board, supra, the Kentucky Court of Appeals refused to create an exception to the psychiatrist-patient privilege so that appellant, the patient's ex-husband, could gain access to her psychiatric evaluation records after the death of their son, and her subsequent conviction for reckless homicide. Rejecting appellant's argument that he should be afforded access to his ex-wife's files because he was his son's beneficiary, the court observed:
The privilege granted by KRS 421.215 is absolute in the absence of the legislated and recognized exceptions.
Atwood v. Atwood, Ky., 550 S.W.2d 465 (1976). It is not for this Court to take it upon itself to waive the privilege for someone or to carve out exceptions.
Southern Bluegrass Mental Health v. Angelucci, Ky.App., 609 S.W.2d 931 (1980).
This position finds support in Professor Wigmore's evidence treatise. Since the privilege is intended "to secure subjectively the patient's freedom from apprehension of disclosure, " it is preserved after the death of the patient. Wigmore, Evidence, § 2387, citing §§ 2341 and 2323 (McNaughton rev. 1961). Kentucky's courts have recognized that the attorney-client and spousal privileges continue after the death of the person communicating.
Payne v. Payne's Admr., 290 Ky. 461, 161 S.W.2d 925 (1942);
Prudential Ins. Co. of America v. Pierce's Adm'x., 270 Ky. 216, 109 S.W.2d 616 (1937). As noted above, although the courts have not ruled on the propriety of continued recognition of the psychiatrist-patient privilege upon the death of the patient, these cases indicate that continued recognition of the privilege is not the exception, but the rule.
It is therefore our conclusion that the protections afforded by the psychiatrist-patient privilege continue after the death of the patient. Although the coroner may require the release of records of psychiatric treatment, "[f]or the purpose of enforcing the provisions of KRS 72.410 to 72.470," KRS 72.415(1), he may not violate the rules of confidentiality pertaining to the psychiatrist-patient relationship by generally disclosing the records of treatment generated in the course of that relationship. The "compelling state and public interest in having a proper determination of cause of death" to which we referred in OAG 89-62, and which is served by release of those records to the coroner, is not served by their broader dissemination.
Among the records which may be excluded from public inspection in the absence of an order of a court of competent jurisdiction are records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly. KRS 61.878(1)(j). It is the opinion of this Office that the privileges codified at KRS 421.215 and KRS 319.111 are incorporated into the Open Records Act by operation of this provision, and that those privileges do not expire after death. We therefore conclude that records generated in the course of psychiatric treatment, and protected by these privileges, are exempt from inspection, though they come into the hands of the coroner for the purpose of enforcing KRS 72.410, et seq. His use of the records must be confined to those purposes, and their distribution prohibited accordingly.