Previous Florida Statutes governing the confidentiality of drug and alcohol treatment records (F.S. Section 397.053, and 396.112), were repealed in 1993 with the enactment of the “Hal S. Marchman Alcohol and Other Drug Services Act of 1993”, F.S. Sections 397.301, et seq. This Act covers a long list of substance abuse health care services including services provided by hospitals licensed under Chapter 395, and physicians licensed under Chapter 458 (M.D.’s) or Chapter 459 (D.O.’s).
This new statute contains in §397.501 a laundry list of patient’s rights, including in the list the right to confidentiality of substance abuse treatment records. The records may not be disclosed without the written consent of the patient to whom they pertain except as follows:
a. To medical personnel in a medical emergency;
b. To service provider personnel if the personnel need to know the information in order to carry out their duties;
c. To the secretary of the Department of Health and Rehabilitative Services for scientific research after deletion of the patient’s name and other identifying information;
d. For performing an audit or evaluation on behalf of a federal, state, or local government agency or third party payer;
e. Upon court order based on application showing good cause for disclosure.
1. The court must examine whether the public interest and the need for disclosure outweigh the potential injury to the patient, to the service provider – patient relationship, and to the service provider itself;
2. In answering any request for a disclosure of patient records, the answer must be framed in a way that will not affirmatively reveal that an identified individual has been or is being diagnosed or treated for substance abuse. However, it is permitted to reveal that an identified individual is not and never has been a patient.
f. Any written consent for substance abuse records for a minor must be signed by the minor. This restriction includes but is not limited to any disclosure of patient identifying information to the parent, legal guardian, or custodian of a minor patient for the purpose of obtaining financial reimbursement.
g. Certain treatment for minors under the Chapter requires consent of a parent before the treatment can be given to a minor. In that situation, any written consent for disclosure must be given by both the minor and the parent.
h. Even if a court order is obtained, a subpoena or similar legal mandate must be issued in order to compel disclosure. The order itself does not compel disclosure.
i. Any application for a court order may be filed separately or as part of a pending civil action in which it appears that the patient records are needed to provide evidence. The application must use a fictitious name, such as John Doe, to refer to the patient, and may not contain or otherwise disclose any patient identifying information unless the patient is the applicant or has given written consent to disclosure or the court has ordered the record of the proceedings sealed from public scrutiny.
j. The patient and the person holding the records from whom disclosure is sought must be given adequate notice in a manner which will not disclose patient identifying information to other persons, and an opportunity to file a written response to the application, or to appear in person.
k. Any oral argument, review of evidence, or hearing must be held in the judge’s chambers or in some manner which ensures that patient identifying information is not disclosed to anyone other than a party to the proceeding, the patient, or the person holding the record, unless the patient requests an open hearing.
l. A court may only authorize disclosure for use in a criminal investigation or prosecution of a patient if the court finds all of the following criteria are met:
i. The crime involved is extremely serious, e.g. homicide, sexual assault, sexual battery, kidnapping, armed robbery, assault with a deadly weapon;
ii. There is a reasonable likelihood that the records will disclose information of substantial value in the investigation or prosecution;
iii. Other ways of obtaining the information are not available or will not be effective; and
iv. Potential injury to the patient or the physician patient relationship is outweighed by the public interest and need for the disclosure.
m. Any service provider personnel who violate or abuse any right or privilege of a patient under this Chapter are liable for “damages as determined by law”.