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After a patient dies, does the surviving spouse have access to all of the notes if requested with a release of information form? Is a court order necessary?

The deceased individual continues to “own” the right to privacy after they die for the same reasons they owned it during their life – to promote frank disclosure of personal information to practitioners. The Supreme Court directly addressed this question several years after White House Counsel Vince Foster committed suicide. The Department of Justice sought access to his notes of sessions with the Clintons in which they discussed the firing of certain White House staff. The Court ruled that the attorney-client privilege survives the individual’s death because society wants to ensure that individuals will be frank with their attorneys and not have to fear that what they tell them will be revealed after the attorneys die. The same would be true with patients of psychotherapists.

The HIPAA Privacy Rule contains an exception to the strong privacy protections for psychotherapy notes in the case of deceased individuals, but only for the disclosure of psychotherapy notes to coroners and medical examiners. 45 CFR 164.508(a)(2)(ii). Other information can also be disclosed to coroners, medical examiners, and funeral directors without authorization, but there is no authorization for disclosure to spouses without authorization. 45 CFR 164.512(g). The HIPAA Privacy Rule provides generally that identifiable health information cannot be used or disclosed except as permitted or required by the Rule. 45 CFR 164.502(a).

That is the general legal answer. A practitioner may conclude from his or her knowledge of the individual and the situation that the patient would not have objected to the disclosure to the spouse and that the risk of liability for disclosure could be low. But there would be at least a theoretical risk of being held accountable for a HIPAA Privacy violation, if the covered entity is covered by HIPAA. It is likely that any privileges under state law would survive the patient’s death as well.

From another point of view:
It is also important to note that the laws governing mental health records vary from state to state, therefore the specific legal issues are somewhat jurisdiction specific. Some states have extremely stringent laws concerning mental health records. In those states, a surviving spouse would not have access to any mental health records simply by requesting a release of information except by court order, which would only be granted under special circumstances when the records are pertinent to litigation.

When the mental health record is at issue in litigation, a judge may order the record or part of the record disclosed if it is necessary for establishing facts in the litigation, after hearing in camera testimony from the therapist, others involved, as well as the person requesting the records, and establishing by review of the records that they would actually be pertinent to the litigation.

Disclaimer: APsaA’s Practice Toolbox should not be considered as legal advice. Be sure to consult your legal advisor.