§ 5328. — 5328. (Amended by Stats. 2023, Ch. 191, Sec. 9.)

California § 5328.

• Jurisdiction: California
• Code WIC: Welfare and Institutions Code - WIC
• Div. 5.: DIVISION 5. COMMUNITY MENTAL HEALTH SERVICES
• Part 1.: PART 1. THE LANTERMAN-PETRIS-SHORT ACT
• Ch. 2.: CHAPTER 2. Involuntary Treatment
• Art. 7.: ARTICLE 7. Legal and Civil Rights of Persons Involuntarily Detained

Text

(a)
All information and records obtained in the course of providing services under Division 4 (commencing with Section 4000), Division 4.1 (commencing with Section 4400), Division 4.5 (commencing with Section 4500), Division 5 (commencing with Section 5000), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7100), to either voluntary or involuntary recipients of services are confidential. Information and records obtained in the course of providing similar services to either voluntary or involuntary recipients before 1969 are also confidential. Information and records shall be disclosed only in any of the following cases:
(1)
(A)
In communications between qualified professional persons in the provision of services
or appropriate referrals, or in the course of conservatorship proceedings. The consent of the patient, or the patient’s guardian or conservator, shall be obtained before information or records may be disclosed by a professional person employed by a facility to a professional person not employed by the facility who does not have the medical or psychological responsibility for the patient’s care.
(B)
Notwithstanding subparagraph (A), if the patient is a dependent or ward of the juvenile court who has been removed from the physical custody of their parents, legal guardian, or Indian custodian, and who is not under a conservatorship, the consent of the patient or their guardian or conservator is not required before information or records may be disclosed to the dependent’s or ward’s social worker or probation officer for the purposes of ensuring the dependent or ward receives all necessary services or referrals for transition out of a facility to a
lower level of care as allowed under 45 C.F.R. Sections 164.502(a)(1)(ii) and 164.512 or any successor regulations. Information obtained pursuant to this paragraph shall not be used in any criminal or juvenile justice proceeding without complying with Section 827. This paragraph does not prohibit evidence identical to that contained within the records from being admissible in a criminal or juvenile justice proceeding, if the evidence is derived solely from means other than this paragraph, as permitted by law. This section does not permit the disclosure of records from a juvenile case file absent compliance with the provisions of Section 827.
(2)
If the patient, with the approval of the physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, or licensed professional clinical counselor, who is in charge of the patient, designates persons to whom information or
records may be released, except that this article does not compel a physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, attorney, or other professional person to reveal information that has been given to the person in confidence by members of a patient’s family. This paragraph does not authorize a licensed marriage and family therapist or licensed professional clinical counselor to provide services or to be in charge of a patient’s care beyond the therapist’s or counselor’s lawful scope of practice.
(3)
To the extent necessary for a recipient to make a claim, or for a claim to be made on behalf of a recipient for aid, insurance, or medical assistance to which the recipient may be entitled.
(4)
(A)
If the recipient of services
is a conservatee or a minor who has been admitted with the consent of their parent or legal guardian, and their conservator, parent, or legal guardian, or a guardian ad litem designates, in writing, persons to whom records or information may be disclosed, except that this article does not compel a physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, attorney, or other professional person to reveal information that has been given to the person in confidence by members of a patient’s family.
(B)
If the recipient of services is a minor dependent or ward of the juvenile court and has been removed from the physical custody of their parents, legal guardian, or Indian custodian, and their attorney or guardian ad litem, in consultation with the dependent or ward, designates in writing persons to whom records or
information may be disclosed. This provision shall not be construed to require written designation for the disclosures permitted by subparagraph (B) of paragraph (1) or paragraph (12).
(5)
For research, provided that the Director of Health Care Services, the Director of State Hospitals, the Director of Social Services, or the Director of Developmental Services designates by regulation, rules for the conduct of research and requires the research to be first reviewed by the appropriate institutional review board or boards. The rules shall include, but need not be limited to, the requirement that all researchers shall sign an oath of confidentiality as follows:
Date
As a condition of doing research concerning persons who have received services from ____ (fill in the facility, agency, or person), I, ____, agree to obtain the prior informed consent of those persons who have received services to the maximum degree possible as determined by the appropriate institutional review board or boards for protection of human subjects reviewing my research, and I further agree not to divulge any information obtained in the course of that research to unauthorized persons, and not to publish or otherwise make public any information regarding persons who have received services such that the person who received services is identifiable.
I recognize that the unauthorized release of confidential information may make me subject to a civil action under provisions of the Welfare and Institutions Code.
(6)
To the courts, as necessary to the administration of justice.
(7)
To governmental law enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families.
(8)
To the Senate Committee on Rules or the Assembly Committee on Rules for the purposes of legislative investigation authorized by the committee.
(9)
If the recipient of services who applies for life or disability insurance designates in writing the insurer to which records or information may be
disclosed.
(10)
To the attorney for the patient in any and all proceedings upon presentation of a release of information signed by the patient, except that when the patient is unable to sign the release, the staff of the facility, upon satisfying itself of the identity of the attorney, and of the fact that the attorney does represent the interests of the patient, may release all information and records relating to the patient, except that this article does not compel a physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, attorney, or other professional person to reveal information that has been given to the person in confidence by members of a patient’s family.
(11)
Upon written agreement by a person previously confined in or otherwise treated by a
facility, the professional person in charge of the facility or the professional person’s designee may release any information, except information that has been given in confidence by members of the person’s family, requested by a probation officer charged with the evaluation of the person after the person’s conviction of a crime if the professional person in charge of the facility determines that the information is relevant to the evaluation. The agreement shall only be operative until sentence is passed on the crime of which the person was convicted. The confidential information released pursuant to this paragraph shall be transmitted to the court separately from the probation report and shall not be placed in the probation report. The confidential information shall remain confidential except for purposes of sentencing. After sentencing, the confidential information shall be sealed.
(12)
(A)
Between persons who are
trained and qualified to serve on multidisciplinary personnel teams pursuant to subdivision (d) of Section 18951. The information and records sought to be disclosed shall be relevant to the provision of child welfare services or the investigation, prevention, identification, management, or treatment of child abuse or neglect pursuant to Chapter 11 (commencing with Section 18950) of Part 6 of Division 9. Information obtained pursuant to this paragraph shall not be used in any criminal or juvenile justice proceeding. This paragraph does not prohibit evidence identical to that contained within the records from being admissible in a criminal or juvenile justice proceeding, if the evidence is derived solely from means other than this paragraph, as permitted by law.
(B)
As used in this paragraph, “child welfare services” means those services that are directed at preventing child abuse or neglect.
(13)
To county patients’ rights advocates who have been given knowing voluntary authorization by a client or a guardian ad litem. The client or guardian ad litem, whoever entered into the agreement, may revoke the authorization at any time, either in writing or by oral declaration to an approved advocate.
(14)
To a committee established in compliance with Section 14725.
(15)
In providing information as described in Section 7325.5. This paragraph does not permit the release of any information other than that described in Section 7325.5.
(16)
To the county behavioral health director or the director’s designee, or to a law enforcement officer, or to the person designated by a law enforcement agency, pursuant to Sections 5152.1 and 5250.1.
(17)
If the patient gives consent, information specifically pertaining to the existence of genetically handicapping conditions, as defined in Section 125135 of the Health and Safety Code, may be released to qualified professional persons for purposes of genetic counseling for blood relatives upon request of the blood relative. For purposes of this paragraph, “qualified professional persons” means those persons with the qualifications necessary to carry out the genetic counseling duties under this paragraph as determined by the genetic disease unit established in the State Department of Health Care Services under Section 125000 of the Health and Safety Code. If the patient does not respond or cannot respond to a request for permission to release information pursuant to this paragraph after reasonable attempts have been made over a two-week period to get a response, the information may be released upon request of the blood relative.
(18)
If the patient, in the opinion of the patient’s psychotherapist, presents a serious danger of violence to a reasonably foreseeable victim or victims, then any of the information or records specified in this section may be released to that person or persons and to law enforcement agencies and county child welfare agencies as the psychotherapist determines is needed for the protection of that person or persons. For purposes of this paragraph, “psychotherapist” has the same meaning as provided in Section 1010 of the Evidence Code.
(19)
(A)
To the designated officer of an emergency response employee, and from that designated officer to an emergency response employee regarding possible exposure to HIV or AIDS, but only to the extent necessary to comply with the federal Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Public Law 101-381; 42 U.S.C. Sec. 201).
(B)
For purposes of this paragraph, “designated officer” and “emergency response employee” have the same meaning as these terms are used in the federal Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Public Law 101-381; 42 U.S.C. Sec. 201).
(C)
The designated officer shall be subject to the confidentiality requirements specified in Section 120980 of the Health and Safety Code, and may be personally liable for unauthorized release of any identifying information about the HIV results. Further, the designated officer shall inform the exposed emergency response employee that the employee is also subject to the confidentiality requirements specified in Section 120980 of the Health and Safety Code, and may be personally liable for unauthorized release of any identifying information about the HIV test results.
(20)
(A)
To a law enforcement officer who personally lodges with a facility, as defined in subparagraph (B), a warrant of arrest or an abstract of a warrant showing that the person sought is wanted for a serious felony, as defined in Section 1192.7 of the Penal Code, or a violent felony, as defined in Section 667.5 of the Penal Code. The information sought and released shall be limited to whether or not the person named in the arrest warrant is presently confined in the facility. This subparagraph shall be implemented with minimum disruption to health facility operations and patients, in accordance with Section 5212. If the law enforcement officer is informed that the person named in the warrant is confined in the facility, the officer may not enter the facility to arrest the person without obtaining a valid search warrant or the permission of staff of the facility.
(B)
For purposes of subparagraph (A), a
facility means all of the following:
(i)
A state hospital, as defined in Section 4001.
(ii)
A general acute care hospital, as defined in subdivision (a) of Section 1250 of the Health and Safety Code, solely with regard to information pertaining to a person with mental illness subject to this section.
(iii)
An acute psychiatric hospital, as defined in subdivision (b) of Section 1250 of the Health and Safety Code.
(iv)
A psychiatric health facility, as described in Section 1250.2 of the Health and Safety Code.
(v)
A mental health rehabilitation center, as described in Section 5675.
(vi)
A skilled nursing facility with a special
treatment program for individuals with mental illness, as described in Sections 51335 and 72445 to 72475, inclusive, of Title 22 of the California Code of Regulations.
(vii)
A psychiatric residential treatment facility, as defined in Section 1250.10 of the Health and Safety Code.
(21)
Between persons who are trained and qualified to serve on multidisciplinary personnel teams pursuant to Section 15610.55. The information and records sought to be disclosed shall be relevant to the prevention, identification, management, or treatment of an abused elder or dependent adult pursuant to Chapter 13 (commencing with Section 15750) of Part 3 of Division 9.
(22)
(A)
When an employee is served with a notice of adverse action, as defined in Section 19570 of the Government Code, all of the following
information and records may be released:
(i)
All information and records that the appointing authority relied upon in issuing the notice of adverse action.
(ii)
All other information and records that are relevant to the adverse action, or that would constitute relevant evidence as defined in Section 210 of the Evidence Code.
(iii)
The information described in clauses (i) and (ii) may be released only if both of the following conditions are met:
(I)
The appointing authority has provided written notice to the consumer and the consumer’s legal representative or, if the consumer has no legal representative or if the legal representative is a state agency, to the clients’ rights advocate, and the consumer, the consumer’s legal representative, or the clients’
rights advocate has not objected in writing to the appointing authority within five business days of receipt of the notice, or the appointing authority, upon review of the objection, has determined that the circumstances on which the adverse action is based are egregious or threaten the health, safety, or life of the consumer or other consumers and without the information the adverse action could not be taken.
(II)
The appointing authority, the person against whom the adverse action has been taken, and the person’s representative, if any, have entered into a stipulation that does all of the following:
(ia)
Prohibits the parties from disclosing or using the information or records for any purpose other than the proceedings for which the information or records were requested or provided.
(ib)
Requires the employee and
the employee’s legal representative to return to the appointing authority all records provided to them under this paragraph, including, but not limited to, all records and documents from any source containing confidential information protected by this section, and all copies of those records and documents, within 10 days of the date that the adverse action becomes final, except for the actual records and documents or copies thereof that are no longer in the possession of the employee or the employee’s legal representative because they were submitted to the administrative tribunal as a component of an appeal from the adverse action.
(ic)
Requires the parties to submit the stipulation to the administrative tribunal with jurisdiction over the adverse action at the earliest possible opportunity.
(B)
For purposes of this paragraph, the State Personnel Board may, before any appeal from
adverse action being filed with it, issue a protective order, upon application by the appointing authority, for the limited purpose of prohibiting the parties from disclosing or using information or records for any purpose other than the proceeding for which the information or records were requested or provided, and to require the employee or the employee’s legal representative to return to the appointing authority all records provided to them under this paragraph, including, but not limited to, all records and documents from any source containing confidential information protected by this section, and all copies of those records and documents, within 10 days of the date that the adverse action becomes final, except for the actual records and documents or copies thereof that are no longer in the possession of the employee or the employee’s legal representatives because they were submitted to the administrative tribunal as a component of an appeal from the adverse action.
(C)
Individual identifiers, including, but not limited to, names, social security numbers, and hospital numbers, that are not necessary for the prosecution or defense of the adverse action, shall not be disclosed.
(D)
All records, documents, or other materials containing confidential information protected by this section that have been submitted or otherwise disclosed to the administrative agency or other person as a component of an appeal from an adverse action shall, upon proper motion by the appointing authority to the administrative tribunal, be placed under administrative seal and shall not, thereafter, be subject to disclosure to any person or entity except upon the issuance of an order of a court of competent jurisdiction.
(E)
For purposes of this paragraph, an adverse action becomes final when the employee fails
to answer within the time specified in Section 19575 of the Government Code, or, after filing an answer, withdraws the appeal, or, upon exhaustion of the administrative appeal or of the judicial review remedies as otherwise provided by law.
(23)
To the person appointed as the developmental services decisionmaker for a minor, dependent, or ward pursuant to Section 319, 361, or 726.
(24)
During the provision of emergency services and care, as defined in Section 1317.1 of the Health and Safety Code, the communication of patient information between a physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, emergency medical personnel at the scene of an emergency or in an emergency medical transport vehicle, or other professional person or emergency medical
personnel at a health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code.
(25)
To a business associate or for health care operations purposes, in accordance with Part 160 (commencing with Section 160.101) and Part 164 (commencing with Section 164.102) of Subchapter C of Subtitle A of Title 45 of the Code of Federal Regulations.
(26)
To authorized personnel who are employed by the California Victim Compensation Board for the purposes of verifying the identity and eligibility of individuals claiming compensation pursuant to the Forced or Involuntary Sterilization Compensation Program described in Chapter 1.6 (commencing with Section 24210) of Division 20 of the Health and Safety Code. The California Victim Compensation Board shall maintain the confidentiality of any information or records received from the department in
accordance with Part 160 (commencing with Section 160.101) and Part 164 (commencing with Section 164.102) of Subchapter C of Subtitle A of Title 45 of the Code of Federal Regulations and this section. Public disclosure of aggregated claimant information or the annual report required under subdivision (b) of Section 24211 of the Health and Safety Code is not a violation of this section.
(27)
To parties to a judicial or administrative proceeding as permitted by law, and who satisfy the requirements under Part 164 (commencing with Section 164.512(e)) of Subchapter C of Subtitle A of Title 45 of the Code of Federal Regulations, except that this paragraph shall not be construed to affect any rights or privileges provided under law of any party or nonparty.
(28)
To the State Department of Health Care Services for the purposes of Section 4081.
(b)
Notwithstanding subdivision (a), patient information and records shall, as necessary, be provided to and discussed with district attorneys for purposes of commitment, recommitment, or petitions for release proceedings for patients committed under Sections 1026, 1370, 1600, 2962, and 2972 of the Penal Code and Section 6600 of this code, unless otherwise prohibited by law.
(c)
The amendment of paragraph (4) of subdivision (a) enacted at the 1970 Regular Session of the Legislature does not constitute a change in, but is declaratory of, the preexisting law.
(d)
This section is not limited by Section 5150.05 or 5332.

Legislative History

Amended by Stats. 2023, Ch. 191, Sec. 9. (SB 137) Effective September 13, 2023.