The Mental Health Procedures Act Has Teeth
A mentally ill patient elopes from a hospital and attacks someone. The injured victim institutes a lawsuit against the hospital, alleging that the hospital failed to properly supervise and secure its mental health patient. The injured person needs the mental health patient's medical records in order to prove that the hospital knew or should have known of the mental health patient's propensity for violence and, thus, establish a prima facie case against the hospital. The injured victim might be out of luck.
The Mental Health Procedures Act, 50 P.S. § 7101 et seq. ("MHPA"), which applies to treatment of mentally ill persons, whether voluntary or involuntarily, inpatient or outpatient, provides immunity to facilities and persons rendering such treatment in the absence of gross negligence or willful misconduct. Further, and among other things, the MHPA provides that the records of mental health patients must be kept strictly confidential. The purpose of the MHPA is to assure the availability of adequate treatment to persons who are mentally ill.
With regard to the limited immunity provision, the protections are intended to encourage health care providers to treat mentally ill patients without concern that they are exposing themselves to the potential for increased liability. With regard to the confidentiality provision, the protection is intended to encourage mentally ill patients to provide information about themselves to their healthcare providers without fear of disclosure, thereby making treatment more effective.
The MHPA's coverage is expansive. It applies to any institution or natural person that provides care to mentally ill patients, and it applies not only to treatment designed to alleviate pain and facilitate recovery from mental illness, but also to care and services that supplement that treatment or are even incidental to it. Thus, for example, the MHPA would apply to a hospital rendering care to a mental health patient for physical ailments. The MHPA has also been found to apply to a transitional residential program for veterans that provides group therapy and life skills training, and to an apartment complex where mentally ill individuals live independently, but are monitored, supervised and counseled.
Moreover, the limited immunity provided by the MHPA extends to injuries suffered by third parties at the hands of mental health patients. Therefore, in the hypothetical scenario presented above, the hospital would be entitled to immunity in the absence of gross negligence or willful misconduct. Likewise, while a healthcare facility that discharges a mental health patient owes a duty to persons who could forseeably be injured by the discharged patient, the facility would only be liable to a third party injured by the discharged patient if the decision to discharge the patient amounted to gross negligence and willful misconduct.
Undoubtedly, gross negligence is a high hurdle. Courts have consistently held that gross negligence is more than ordinary carelessness; the behavior must be flagrant. And, courts have not been shy about granting summary judgment pursuant to the MHPA where a plaintiff fails make out a case of gross negligence.
As the Pennsylvania Supreme Court stated in Albright v. Abington Memorial Hospital, 548 Pa. 268 (1997): "To require mental health employees and their employers to defend jury trials on the issue of gross negligence where . only ordinary negligence has been established, would gut the limited immunity provision of the [MHPA] of any meaning and unfairly subject such employees and facilities to protracted and expensive litigation."
Indeed, the Superior Court in Downey v. Crozer-Chester Medical Center, 2003 Pa. Super. 51 (2003), recognized that the immunity provided by the MHPA "would mean little if the persons or entities covered by that provision were required to undergo trial in every case and leave it to a jury to determine if the complained of misdeeds (if there were any) rose to the level of gross negligence."
The confidentiality of records provision is similarly strong and broad. The Act provides that a mental health patient's records may not be disclosed without the written consent of the patient. The provision applies not just to medical records, but to any document that concerns the mental health patient's treatment. And, confidentiality can only be waived by the patient; courts have held that a deceased patient's heirs cannot authorize the release. Additionally, unlike the Health Insurance Portability and Accountability Act (HIPAA), the MHPA has been interpreted to actually provide a statutory privilege of confidentiality.
Legal proceedings are no exception to confidentiality, save for several proceedings specifically authorized under the MHPA - proceedings concerning involuntary emergency treatment, court-ordered involuntary treatment, transfer of persons in involuntary treatment, or voluntary mental health commitment determinations. Courts have held that the provision is clear and unambiguous on this subject, and its protections are mandatory, not discretionary. In Zane v. Friends Hospital, 575 Pa. 236 (2003), the Pennsylvania Supreme Court was not persuaded by the fact that the plaintiff, injured at the hands of a mental health patient under the care of the defendant hospital, would be unable to prosecute her case without the patient's mental health records. The Court stated that allowing the production of the mental health patient's records in this context would violate the patient's statutory protections and "have a chilling effect on mental health treatment in general."
More recently, in a child custody matter, the Superior Court declined to order the production of the mother's mental health records, even though the mother's mental condition was directly at issue in the context of determining the best interests of her child. That said, also fairly recently, the Philadelphia Court of Common Pleas did allow the disclosure of a mental health patient's records when the plaintiff was the mental health patient and the plaintiff was asserting a claim for emotional distress. In that context, the court found that it would be unfair to allow the plaintiff to file a lawsuit and then deny the defendant relevant evidence which might tend to mitigate the defendant's liability.
The take away: The courts clearly take seriously the public policy of ensuring the availability of treatment for mentally ill persons, and in most cases this interest appears to outweigh litigants' interest in proving their cases. In personal injury and professional liability suits involving treatment of mental health patients, plaintiffs must be able make out a prima facie case of gross negligence sufficient to survive summary judgment. And, regardless of the type of action, the records of third-party mental health patients will not be available without the patient's written consent. In cases where that consent cannot be obtained, litigants will have to find another way to prove their cases. The impact of this cannot be stressed enough. In our above hypothetical, it would likely be incumbent upon our injured patient to prove that the hospital knew, or at least should have known, that the mental health patient might be inclined to leave the hospital, and was grossly negligent for failing to take steps to prevent that from occurring. Without access to the mental health patient's medical information, however, proving this could be exceedingly difficult; perhaps, in some cases, even impossible. On the flip-side, under the recent Philadelphia Court of Common Pleas decision, plaintiffs will not be able to use the MHPA has a shield to prevent the discovery of their own mental health records when they put their mental health directly at issue.
One of the more notable lessons is that the MHPA's protections appear to apply not only to providers that actually render mental health treatment, but to providers rendering treatment for physical conditions to a mentally ill person as well. It is no doubt common that a mental health patient residing or undergoing treatment at a mental health facility is transferred to a general hospital for treatment of a physical ailment. Under this circumstance, at least one court has held that the hospital rendering care for physical conditions - whether related to the patient's mental health issues or simply attendant to them - is entitled to limited immunity under the MHPA. A less clear scenario might involve the mentally ill patient who presents to a hospital emergency room with a physical complaint. The analysis might turn on specific facts, such as whether the hospital was aware of the patient's mental illness.
The scope of the MHPA's protections (or limitations, depending on your point of view) is still being developed. Considering the clear policy objective of encouraging the treatment of mental health patients, it's not unreasonable to anticipate that, moving forward, courts will be more inclined to extend the MHPA's protections rather than limit them.
This article is reprinted with permission from the January 25, 2011 issue of The Legal Intelligencer.
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