Can a hospital get a copy of the recording of a patient's involuntary commitment hearing in Maryland?

Plain-English summary

The acting chief hearing examiner for the Department of Health and Mental Hygiene asked whether a hospital whose staff had testified at an involuntary mental health admission hearing could get access to the tape recording of that hearing. A state regulation limited access to the recording to "a patient, his counsel, or other authorized representative of the patient," but the examiner wanted to know whether that regulation could actually be enforced, or whether the Public Information Act required broader disclosure.

The Attorney General concluded that the recording could be disclosed only to the patient or the patient's authorized representative, and not to any other requester, including hospital staff who had testified, without the patient's consent. The opinion reasoned that an agency regulation cannot on its own make a public record confidential; the regulation's limit on access was valid only because it matched what the Public Information Act itself already required. Because an involuntary admission hearing consists largely of medical and psychological testimony about the patient's mental condition, the recording fell within the Act's mandatory exception for medical or psychological information, which only the patient, as the sole "person in interest," could waive. The opinion recognized this could be an inconvenient result, for example, preventing a treating hospital from reviewing a recording that might be useful for the patient's own care, but concluded that fixing that gap would require a statutory amendment, not looser interpretation of existing law.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a hospital whose doctors testified at a patient's involuntary commitment hearing later listen to the tape of that hearing?
Under this 1986 opinion, no, not without the patient's consent. The Attorney General concluded that only the patient or the patient's authorized representative could access the recording.

Was the state regulation limiting access to commitment hearing tapes actually enforceable, or could the Public Information Act override it?
The opinion found the regulation enforceable because it matched what the Public Information Act itself already required for medical and psychological information; an agency regulation cannot independently create confidentiality that the Act does not otherwise provide.

Could a patient ever be denied access to the recording of their own involuntary commitment hearing?
The opinion noted a narrow exception: if the patient's attending physician believed disclosure would be medically contraindicated, full disclosure of the record could be denied to the patient, though even then the opinion said the physician would generally need access to the recording to make that judgment.

Background and statutory framework

Maryland's Mental Hygiene Law gives a person proposed for involuntary admission to a mental health facility the right to a hearing before an impartial hearing officer, who must find clear and convincing evidence of several statutory elements, including a mental disorder, need for inpatient care, and danger to self or others, before ordering admission. Because the hearing's entire purpose is to assess the patient's mental condition, the opinion found that the testimony at such a hearing, largely from psychiatrists and other mental health professionals, constitutes "medical or psychological information" about the patient.

Department of Health and Mental Hygiene regulations required hearing officers to make a mechanical recording of the proceedings and, by their terms, allowed only "a patient, his counsel, or other authorized representative of the patient" to listen to it. The opinion explained this regulation was not itself the source of the confidentiality; a state agency regulation, standing alone, cannot make a class of public records confidential, because that would let agencies undermine the Public Information Act's disclosure scheme by regulation. Instead, the regulation was valid because the recording independently qualified for the Act's mandatory exception covering medical or psychological information, and because the Act's separate definition of "person in interest," the only person entitled to see such information without a further showing, matched the patient alone as the one person the hearing concerned.

The opinion also worked through why other confidentiality statutes did not independently apply: the psychiatrist-patient privilege in the Courts Article expressly does not apply when disclosure is necessary to place a patient in a facility, and the Health-General Article's various medical-records confidentiality provisions were written for different kinds of records (such as hospital or provider medical records) rather than a hearing officer's own hearing record. That left the Public Information Act's medical-information exception as the sole basis for confidentiality, but also as a sufficient one, because the recording of testimony almost entirely concerned the patient's mental condition. The opinion suggested that expanding access, for instance to let a treating facility review the tape for its own care of the patient, would need new legislation rather than a different reading of existing law.

Citations

Statutes:

• HG §10-632(a) (right to a hearing before involuntary admission)
• HG §10-632(e) (statutory elements the hearing officer must find by clear and convincing evidence)
• HG §10-101(e)(1) (definition of "facility")
• COMAR 10.21.01.07E (regulation requiring a recorded hearing record and limiting access to it)
• SG §10-611(f) (definition of "public record," covering the hearing tape)
• SG §10-613(a) (general duty to permit inspection of public records)
• SG §10-615(1) and (2)(i) (mandatory withholding of privileged, confidential, or otherwise legally restricted records)
• CJ §9-109(b) (psychiatrist/psychologist-patient privilege)
• CJ §9-109(d)(1) (exception to the privilege when disclosure is necessary to place the patient in a facility)
• HG §4-301 (confidentiality of medical records held by a provider of medical care)
• HG §4-302 (confidentiality of hospital and related-institution medical records)
• HG §7-612 (confidentiality of records at facilities for the mentally retarded)
• HG §10-701(d) (confidentiality of records of individuals in a mental health facility)
• HG §10-713(c) (confidentiality of records kept by a mental health facility on admitted individuals)
• SG §10-617(b)(1) (mandatory withholding of medical or psychological information)
• SG §10-611(c)(2) (definition of "custodian")
• SG §10-614(b)(3)(iii) (severability of nonexempt portions of a record)
• SG §10-617(b)(2) (disclosure to a "person in interest" as permitted under HG §4-302(b))
• SG §10-611(e) (definition of "person in interest")
• HG §4-302(b) and (a)(4) (disclosure of hospital medical records to the person in interest)
• HG §4-302(b)(2) (physician's authority to deny disclosure if medically contraindicated)
• HG §4-301(c)(8) (provider-to-provider disclosure for treatment purposes)
• COMAR 10.21.01.04B (records of persons in observation period status)
• SG §10-612(b) (general construction favoring inspection, subject to privacy)

Cases:

• 71 Opinions of the Attorney General 288, 290 (1986)
• 63 Opinions of the Attorney General 463 (1978)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1986/Volume71_1986.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Public Information—"Medical Or Psychological Information"—"Person Of Interest"—Tape Recording of Involuntary Admission Hearing May Be Disclosed Only To Patient Or Authorized Representative.

May 12, 1986

Arthur Cohen, J.D., M.P.H.
Acting Chief Hearing Examiner
Office of Hearings
Department of Health and Mental Hygiene

You have requested our opinion concerning access to a tape recording of a hearing for the involuntary admission of a patient to a mental health facility. Specifically, you ask whether a hospital whose professional staff had participated at the hearing may be granted access to the taped record of that hearing.

For the reasons stated below, we conclude that the tape recording of an involuntary admission hearing may be disclosed only to the patient or his or her representative. It may not be disclosed to any other requester, including participants in the hearing, without the consent of the patient. A narrow exception to this general conclusion is discussed in note 9 below.

I
Involuntary Admission Hearings

A. Purpose

The Mental Hygiene Law affords to "any individual proposed for involuntary admission" to a public or private mental health facility a right to "a hearing to determine whether the individual is to be admitted to a facility as an involuntary patient or released without being admitted." §10-632(a) of the Health-General Article ("HG" Article). "Except as otherwise provided in [the Mental Hygiene Law], 'facility' means any public or private clinic, hospital, or other institution that provides or purports to provide treatment or other services for individuals who have mental disorders." HG §10-101(e)(1). The hearing, conducted by an impartial hearing officer, is intended to develop a record upon which the hearing officer may make the required determination:

"The hearing officer shall:

(1) Consider all the evidence and testimony of record; and

(2) Order the release of the individual from the facility unless the record demonstrates by clear and convincing evidence that at the time of the hearing each of the following elements exist as to the individual whose involuntary admission is sought:

(i) The individual has a mental disorder;

(ii) The individual needs in-patient care or treatment;

(iii) The individual presents a danger to the life or safety of the individual or of others;

(iv) The individual is unable or unwilling to be voluntarily admitted to the facility;

(v) There is no available less restrictive form of intervention that is consistent with the welfare and safety of the individual; and

(vi) If the individual is 65 years old or older and is to be admitted to a State facility, the individual has been evaluated by a geriatric evaluation team and no less restrictive form of care or treatment was determined by the team to be appropriate." HG §10-632(e).

Thus, the focus of the hearing is on the mental condition of the patient whose involuntary admission is sought. Much of the testimony would normally be presented by psychiatrists or other mental health professionals. Any lay testimony about the patient can be viewed in this context as a report of the patient's behavioral symptoms. In short, the hearing consists largely of a presentation of medically relevant information about the mental condition of the patient.

B. Record of Hearing

Under the pertinent regulations of the Department of Health and Mental Hygiene, hearing testimony is taped:

"The hearing officer shall maintain a record of the hearing which shall include all the physical evidence submitted by the parties and the mechanical recording of the oral proceedings before the hearing officer. The mechanical recording need not be transcribed unless an appropriate appeal is taken by the patient or upon payment of costs for the transcription by the involuntary patient or other person entitled to access to the transcript. The Department shall pay the costs of transcription if the patient is indigent. Upon request, a patient, his counsel, or other authorized representative of the patient shall be allowed to listen to any mechanical recording of the original proceeding in which the patient is a party." COMAR 10.21.01.07E.

This regulation expressly grants access to the recording only to "a patient, his counsel, or other authorized representative of the patient." This limited grant of access would be meaningless if it were not predicated upon the assumption that the taped record is otherwise confidential. Hence, if the regulation may be given effect, no participant in a hearing other than the patient or the patient's representative would be able to gain access to the tape, unless the patient consented. As we read it, the regulation applies the same restriction to transcripts of recordings. A hearing transcript is made only if an appeal "is taken by the patient or upon payment of costs for the transcript by the involuntary patient or other person entitled to access to the transcript." COMAR 10.21.01.07E. In context, "other person entitled to access" means the patient's "counsel or other authorized representative," i.e., the same persons who are entitled to access to the tape recording. It would be anomalous if the regulation were read to grant broader access to sensitive medical information merely because the information is transcribed. In any event, as discussed in Part II C below, the Public Information Act restricts disclosure of medical information, whatever its format.

However, the validity of the implied restriction in the regulation turns on the status of the record under the Maryland Public Information Act ("PIA") and other statutes governing access to records. If the PIA or other law were to mandate disclosure to persons other than the patient, the tighter restriction in the regulation could not be given effect.

"Can a state agency regulation or county ordinance having the force and effect of law make a class of records confidential? The probable answer is no. Such an interpretation would allow state agencies and local entities at their election to totally undermine the overall purposes of the [PIA]." Attorney General's Office, Public Information Act Manual 14 (4th ed. 1985).

Thus, we turn to the requirements of the PIA.

II
Statutory Restrictions on Access

A. Nature of Record

The tape recording of an involuntary admission hearing is unquestionably a "public record," for purposes of the PIA. §10-611(f) of the State Government Article ("SG" Article). See 71 Opinions of the Attorney General 288, 290 (1986). Therefore, it would be subject to disclosure upon request unless the PIA requires or permits withholding. SG §10-613(a). Ordinarily, the PIA "shall be construed in favor of permitting inspection of a public record." SG §10-612(b). However, this general construction is inapplicable if, as here, "an unwarranted invasion of privacy of a person in interest would result" from disclosure. Id. See 71 Opinions of the Attorney General at 291.

B. Effect of Other Law

The PIA generally requires the denial of a request for access to a public record if that record, or any part of it, is "privileged or confidential" by law or if "inspection would be contrary to ... a State statute." SG §10-615(1) and (2)(i). SG §10-615 also requires withholding if inspection would be contrary to "a federal statute or regulation ...[,] the rules adopted by the Court of Appeals ... [,or] an order of a court of record." Hence, we must first look to provisions of law outside the PIA to determine if any of them directly precludes access to the hearing record. In our view, none does.

Under §9-109(b) of the Courts Article ("CJ" Article), "communications [to a psychiatrist or psychologist] relating to diagnosis or treatment of the patient's mental or emotional disorder" are generally privileged. However, "[t]here is no privilege if... [a] disclosure is necessary for the purposes of placing the patient in a facility for mental illness." CJ §9-109(d)(1). Accordingly, the disclosures made by psychiatrists or psychologists at an involuntary admission hearing are not "privileged ... by law," within the meaning of SG §10-615(1).

Moreover, although the Health-General Article is replete with provisions intended to assure the confidentiality of records containing medical information, none of these applies to the recording of an involuntary admission hearing. See HG §4-301 (medical records in the custody of a provider of medical care); 4-302 (medical records of hospitals or related institutions); 7-612 (records kept by facilities for the treatment of mentally retarded individuals); 10-701(d) (records of individuals in a mental health facility); and 10-713(c) (records kept by a mental health facility on individuals admitted to the facility). In 63 Opinions of the Attorney General 463 (1978), this office concluded that the Legislative Auditor was authorized to examine the medical records of the Department of Health and Mental Hygiene, so long as the Legislative Auditor maintained the confidentiality of the records. The opinion assumed, for purposes of the specific question addressed by it, that the term "providers of medical care" in the predecessor of HG §4-301 "includes the Department of Health and Mental Hygiene." 63 Opinions of the Attorney General at 459. While we do not disagree with this assumption, nevertheless we think that HG §4-301 does not apply to medical records held by the Department in a capacity other than as a "provider of medical care", here, in its capacity as adjudicator. Thus, any restriction on the disclosure of the recording is to be found only in the PIA.

C. Required Denial Under the PIA

The PIA generally requires the custodian of a record to "deny inspection of the part of a public record that contains medical or psychological information about an individual, other than an autopsy report of a medical examiner." SG §10-617(b)(1). The "custodian" of a record is the person who has "physical custody and control" of it. SG §10-611(c)(2). The tape recording of an involuntary admission hearing consists largely, if not exclusively, of such "medical or psychological information." See Part I A above. To the extent that a recording contains material other than "medical or psychological information," those portions, if "reasonably severable," must be made available upon request (unless exempt from disclosure for some other reason). SG §10-614(b)(3)(iii).

The only exception to this requirement is that the custodian "shall permit the person in interest to inspect the public record to the extent permitted under §4-302(b) of the Health-General Article." SG §10-617(b)(2). The term "person in interest" is defined, for purposes of the PIA, as follows:

"'Person in interest' means:

(1) A person or governmental unit that is the subject of a public record or a designee of the person or governmental unit; or

(2) If the person has a legal disability, the parent or legal representative of the person." SG §10-611(e).

In our view, only the patient is "the subject of" a hearing, the sole purpose of which is to determine whether that patient's condition requires involuntary admission to a mental health facility. Correspondingly, only the patient is "the subject of" the recording of that hearing. Although persons other than the patient certainly contribute to the record through their testimony, none of them can fairly be regarded as "the subject of" that record.

This construction is reinforced by the separate definition of "person in interest" for purposes of HG §4-302(b), which governs disclosure of hospital records to the patient and which SG §10-617(b)(2) expressly incorporates as the basis of disclosure to the "person in interest":

"'Person in interest' means:

(i) As to a minor on whom a medical record is kept, a parent of the minor; and

(ii) As to an adult on whom a medical record is kept:

1. The adult;

2. A designee of the adult; or

3. If the adult has been adjudicated a disabled person, the spouse or a legal representative of the adult." HG §4-302(a)(4).

Thus, only the patient (or, as appropriate, the patient's representative), and no one else, is to be regarded as "the person in interest" of a public record that contains medical and psychological information about that patient.

Accordingly, we conclude that SG §10-617(b) prohibits the disclosure of the tape recording of an involuntary commitment hearing to anyone other than the patient, those authorized by law to represent the patient's interests, and those who seek access with the patient's or authorized representative's consent. The Department's regulation, which permits only "a patient, his counsel, or other authorized representative of the patient" to listen to the recording, correctly implements the statutory requirement. Thus, a hospital whose staff members have testified at a hearing may generally not be permitted access to the recording of the hearing.

An exception would potentially arise if an involuntarily admitted patient sought access to the record. Under SG §10-617(b)(2), that access is to be granted "to the extent permitted under [HG] §4-302(b)." Under HG §4-302(b)(2), disclosure in full of a medical record relating to a "psychiatric or psychological problem" may be denied if "the attending physician believes disclosure of the medical record to be medically contraindicated." In order to make that judgment in some cases, the attending physician would have to have access to the record, i.e., the tape recording. SG §10-617(b) necessarily permits disclosure in that situation. See also COMAR 10.21.01.04B (records of persons in observation period status).

III
Conclusion

In summary, it is our opinion that the tape recording of an involuntary admission hearing may be disclosed only to the patient or his or her representative, unless the patient consents to other disclosure. It may not be disclosed without consent to any other requester, including participants in the hearing. We recognize that this restriction might, for example, prevent the treating facility from gaining access to a record that would be useful in its treatment of the patient. However, such a basis for disclosure would require a statutory amendment, perhaps along the lines of HG §4-301(c)(8) (A provider of medical care who has custody of medical records may provide information "requested by another provider of medical care for the sole purpose of treating the individual on whom the record is kept.").

In a recent report to the Governor, we recommended an effort to reform the current welter of overlapping and confusing provisions concerning access to mental health records. Attorney General's Office, Report to the Governor on the Confidentiality of Mental Health Records 9-10 (Jan. 1986). The issues raised by your inquiry should be examined as part of this effort.

Stephen H. Sachs
Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice