H. B. 2789
(By Delegate Richards)
[Introduced March 31, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one and two, article three,
chapter twenty-seven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
mental illness; providing for limited disclosure of certain
confidential information to careproviders; and providing for
due process hearings on requests by certain careproviders
for specific information about a person with a mental
illness.
Be it enacted by the Legislature of West Virginia:
That sections one and two, article three, chapter twenty-
seven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to read as
follows:
ARTICLE 3. CONFIDENTIALITY.
§27-3-1. Definition of confidential information; disclosure;
disclosure by certain mental health professionals.
(a) Communications and information obtained in the course oftreatment or evaluation of any client or patient shall be deemed
to be "confidential information" and shall include the fact that
a person is or has been a client or patient, information
transmitted by a patient or client or family thereof for purposes
relating to diagnosis or treatment, information transmitted by
persons participating in the accomplishment of the objectives of
diagnosis or treatment, all diagnoses or opinions formed
regarding a client's or patient's physical, mental or emotional
condition; any advice, instructions or prescriptions issued in
the course of diagnosis or treatment, and any record or
characterization of the matters hereinbefore described. It does
not include information which does not identify a client or
patient, information from which a person acquainted with a client
or patient would not recognize such client or patient, and
uncoded information from which there is no possible means to
identify a client or patient.
(b) Confidential information may be disclosed:
(1) In a proceeding under section four, article five of this
chapter to disclose the results of an involuntary examination
made pursuant to sections two, three or four, article five of
this chapter;
(2) In a proceeding under article six-a of this chapter to
disclose the results of an involuntary examination made pursuant
thereto;
(3) Pursuant to an order of any court based upon a finding
that said information is sufficiently relevant to a proceedingbefore the court to outweigh the importance of maintaining the
confidentiality established by this section;
(4) To protect against a clear and substantial danger of
imminent injury by a patient or client to himself or another; and
(5) For treatment or internal review purposes, to staff of
the mental health facility where the patient is being cared for
or to other health professionals involved in treatment of the
patient.
A mental health professional, providing care and treatment
to an adult person with a mental illness as the term mental
illness is defined in section two, article one of this chapter,
may provide certain information to a family member or other
person if the family member or the other person lives with and
provides direct care to the person with a mental illness who,
without the direct care provided would experience significant
deterioration in his or her ability to perform daily living
functions, and the disclosure would assist in his or her care.
A mental health professional may not disclose information to the
family member or the person living with and providing care to a
person with a mental illness unless the person making the request
submits a signed and dated written request for the information
which includes a statement of how the information would be used
to assist the person with a mental illness.
Before any information may be disclosed to a family member
or other person providing care to a person with a mental illness,
the person with a mental illness shall be informed in writing ofthe request, the name of the person making the request, the
reason for the request, and the specific information being
disclosed. Before any information is disclosed the person with
a mental illness shall be given the opportunity to voluntarily
agree to the disclosure. If, after being notified of the request
the person with a mental illness refuses to voluntarily consent
to the disclosure, the information shall not be disclosed unless
the secretary of health and human resources determines after a
due process hearing conducted at the request of the family member
or other person providing care to the person with a mental
illness that the disclosure of the information is in the best
interest of the person with a mental illness. At any hearing
under the provisions of this section, the person with a mental
illness shall have the right to be represented, give testimony
and examine witnesses.
Information disclosed shall be limited to information
regarding diagnosis, admission to or discharge from a treatment
facility, the name of the medication prescribed and any side
effects of any medication prescribed. The secretary of health
and human resources may promulgate rules under the provisions of
chapter twenty-nine of this code to implement the provisions of
this section.
§27-3-2. Authorization of disclosure of confidential
information.
No Except as provided for in section one of this article,
consent or authorization for the transmission or disclosure ofconfidential information shall be is not effective unless it is
in writing and signed by the patient or client by his legal
guardian. Every person signing an authorization shall be given
a copy.
Every person requesting such authorization shall inform the
patient, client or authorized representative that refusal to give
such authorization will in no way jeopardize his right to obtain
present or future treatment except where and to the extent
disclosure is necessary for treatment of said patient or client
or for the substantiation of a claim for payment from a person
other than the patient or client.
NOTE: The purpose of this bill is to provide a procedure
whereby a family member or other person who lives with a person
with mental illness and provides direct care to the person with
mental illness to obtain certain confidential information
relating to the treatment of the person with a mental illness
which would assist the family member or the other person to
provide care to the person with a mental illness.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.