SENATE FILE _____

BY  (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON FRAISE)

A BILL FOR

An Act relating to the discovery of privileged medical records, including mental health records, in a criminal case and including effective date provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

   Section 1.  Section 228.6, subsection 4, Code 2011, is amended to read as follows:
   4.
  a.  Mental health information may be disclosed in a civil or administrative proceeding in which an individual eighteen years of age or older or an individual’s legal representative or, in the case of a deceased individual, a party claiming or defending through a beneficiary of the individual, offers the individual’s mental or emotional condition as an element of a claim or a defense.
   b.  Mental health information may be disclosed in a criminal proceeding pursuant to section 622.10, subsection 3A.
   Sec. 2.  Section 622.10, Code 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  3A.
  a.  Except as otherwise provided in this subsection, the confidentiality privilege under this section shall be absolute with regard to a criminal action and this section shall not be construed to authorize or require the disclosure of any privileged records to a defendant in a criminal action unless either of the following occur:
   (1)  The privilege holder voluntarily waives the confidentiality privilege.
   (2)
  (a)  The defendant seeking access to privileged records under this section files a motion demonstrating in good faith a reasonable probability that the information sought is likely to contain exculpatory information that is not available from any other source and for which there is a compelling need for the defendant to present a defense in the case. Such a motion shall be filed not later than forty days after arraignment under seal of the court.
   (b)  Upon a showing of a reasonable probability that the privileged records sought may likely contain exculpatory information that is not available from any other source, the court shall conduct an in camera review of such records to determine whether exculpatory information is contained in such records.
   (c)  If exculpatory information is contained in such records, the court shall balance the need to disclose such information against the privacy interest of the privilege holder.
   (d)  Upon the court’s determination, in writing, that the privileged information sought is exculpatory and that there is a compelling need for such information that outweighs the privacy interests of the privilege holder, the court shall issue an order allowing the disclosure of only those portions of the records that contain the exculpatory information. The court’s order shall also prohibit any further dissemination of the information to any person, other than the defendant, the defendant’s attorney, and the prosecutor, unless otherwise authorized by the court.
   b.  Privileged information obtained by any means other than as provided in paragraph“a” shall not be admissible in any criminal action.
   Sec. 3.  EFFECTIVE UPON ENACTMENT.  This Act, being deemed of immediate importance, takes effect upon enactment.
EXPLANATION
   This bill relates to the discovery of privileged medical records, including mental health records, in a criminal case and includes effective date provisions.
   Under Iowa Code section 622.10, certain health care professionals, including mental health professionals, are prohibited, in giving testimony, from disclosing any confidential communication that occurs between the health care professional and a patient during the course of the patient’s course of treatment. In State v. Cashen, 789 N.W.2d 400 (2010), the Iowa Supreme Court set forth certain protocol that must be followed to balance a patient’s right to privacy with a defendant’s right to present evidence to a jury that might influence the jury’s determination of guilt if privileged mental health records are made available in a criminal proceeding.
   The bill amends Code section 622.10 to provide that, except as otherwise provided in the bill, the confidentiality privilege under Code section 622.10 shall be absolute in relation to a criminal action and that the bill shall not be construed to authorize or require the disclosure of any privileged records to a defendant in a criminal action unless either the privilege holder voluntarily waives the confidentiality privilege or the defendant seeking access to privileged records files a motion demonstrating in good faith a reasonable probability that the information sought is likely to contain exculpatory information that is not available from any other source and for which there is a compelling need for the defendant to present a defense in the case.
   The bill provides that if the defendant files such a motion, the court shall conduct an in camera review of such records to determine whether exculpatory information is contained in such records upon a showing of a reasonable probability that the privileged records sought may likely contain exculpatory information that is not available from any other source. If exculpatory information is contained in such records, the court is required to balance the need to disclose such information against the privacy interest of the privilege holder. If the court determines that the privileged information sought is exculpatory and that there is a compelling need for such information that outweighs the privacy interests of the privilege holder, the court shall issue an order allowing the disclosure of only those portions of the records that contain the exculpatory information. The court’s order shall also prohibit any further dissemination of the information to any person, other than the defendant, the defendant’s attorney, and the prosecutor, unless otherwise authorized by the court. The bill provides that privileged information obtained by any means other than as provided in the bill is not admissible in a criminal action.
   The bill makes a conforming amendment to Code section 228.6 relating to the compulsory disclosure of mental health and psychological information.
   The bill takes effect upon enactment.