H.F. 460 Section 1. Section 228.6, subsection 4, Code 2011, is 1 amended to read as follows: 2 4. a. Mental health information may be disclosed in a civil 3 or administrative proceeding in which an individual eighteen 4 years of age or older or an individual’s legal representative 5 or, in the case of a deceased individual, a party claiming or 6 defending through a beneficiary of the individual, offers the 7 individual’s mental or emotional condition as an element of a 8 claim or a defense. 9 b. Mental health information may be disclosed in a criminal 10 proceeding pursuant to section 622.10, subsection 3A. 11 Sec. 2. Section 622.10, Code 2011, is amended by adding the 12 following new subsection: 13 NEW SUBSECTION . 3A. a. Except as otherwise provided in 14 this subsection, the confidentiality privilege under this 15 section shall be absolute with regard to a criminal action and 16 this section shall not be construed to authorize or require 17 the disclosure of any privileged records to a defendant in a 18 criminal action unless either of the following occur: 19 (1) The privilege holder voluntarily waives the 20 confidentiality privilege. 21 (2) (a) The defendant seeking access to privileged records 22 under this section files a motion demonstrating in good faith a 23 reasonable probability that the information sought is likely 24 to contain exculpatory information that is not available from 25 any other source and for which there is a compelling need for 26 the defendant to present a defense in the case. Such a motion 27 shall be filed not later than forty days after arraignment 28 under seal of the court. Failure of the defendant to timely 29 file such a motion constitutes a waiver of the right to seek 30 access to privileged records under this section, but the court, 31 for good cause shown, may grant relief from such waiver. 32 (b) Upon a showing of a reasonable probability that the 33 privileged records sought may likely contain exculpatory 34 information that is not available from any other source, the 35 -1- LSB 1506HV (2) 84 rh/rj 1/ 4

H.F. 460 court shall conduct an in camera review of such records to 1 determine whether exculpatory information is contained in such 2 records. 3 (c) If exculpatory information is contained in such 4 records, the court shall balance the need to disclose such 5 information against the privacy interest of the privilege 6 holder. 7 (d) Upon the court’s determination, in writing, that the 8 privileged information sought is exculpatory and that there 9 is a compelling need for such information that outweighs the 10 privacy interests of the privilege holder, the court shall 11 issue an order allowing the disclosure of only those portions 12 of the records that contain the exculpatory information. The 13 court’s order shall also prohibit any further dissemination 14 of the information to any person, other than the defendant, 15 the defendant’s attorney, and the prosecutor, unless otherwise 16 authorized by the court. 17 b. Privileged information obtained by any means other than 18 as provided in paragraph “a” shall not be admissible in any 19 criminal action. 20 Sec. 3. EFFECTIVE UPON ENACTMENT. This Act, being deemed of 21 immediate importance, takes effect upon enactment. 22 EXPLANATION 23 This bill relates to the discovery of privileged medical 24 records, including mental health records, in a criminal case 25 and includes effective date provisions. 26 Under Iowa Code section 622.10, certain health care 27 professionals, including mental health professionals, 28 are prohibited, in giving testimony, from disclosing any 29 confidential communication that occurs between the health care 30 professional and a patient during the course of the patient’s 31 course of treatment. In State v. Cashen, 789 N.W.2d 400 32 (2010), the Iowa Supreme Court set forth certain protocol that 33 must be followed to balance a patient’s right to privacy with 34 a defendant’s right to present evidence to a jury that might 35 -2- LSB 1506HV (2) 84 rh/rj 2/ 4

H.F. 460 influence the jury’s determination of guilt if privileged 1 mental health records are made available in a criminal 2 proceeding. 3 The bill amends Code section 622.10 to provide that, 4 except as otherwise provided in the bill, the confidentiality 5 privilege under Code section 622.10 shall be absolute in 6 relation to a criminal action and that the bill shall not 7 be construed to authorize or require the disclosure of 8 any privileged records to a defendant in a criminal action 9 unless either the privilege holder voluntarily waives the 10 confidentiality privilege or the defendant seeking access to 11 privileged records files a motion demonstrating in good faith a 12 reasonable probability that the information sought is likely 13 to contain exculpatory information that is not available from 14 any other source and for which there is a compelling need for 15 the defendant to present a defense in the case. Failure of the 16 defendant to timely file a motion constitutes a waiver of the 17 right to seek access to privileged records but the court, for 18 good cause shown, may grant relief from such waiver. 19 The bill provides that if the defendant files such a motion, 20 the court shall conduct an in camera review of such records 21 to determine whether exculpatory information is contained in 22 such records upon a showing of a reasonable probability that 23 the privileged records sought may likely contain exculpatory 24 information that is not available from any other source. If 25 exculpatory information is contained in such records, the court 26 is required to balance the need to disclose such information 27 against the privacy interest of the privilege holder. If 28 the court determines that the privileged information sought 29 is exculpatory and that there is a compelling need for such 30 information that outweighs the privacy interests of the 31 privilege holder, the court shall issue an order allowing the 32 disclosure of only those portions of the records that contain 33 the exculpatory information. The court’s order shall also 34 prohibit any further dissemination of the information to any 35 -3- LSB 1506HV (2) 84 rh/rj 3/ 4

H.F. 460 person, other than the defendant, the defendant’s attorney, 1 and the prosecutor, unless otherwise authorized by the court. 2 The bill provides that privileged information obtained by any 3 means other than as provided in the bill is not admissible in 4 a criminal action. 5 The bill makes a conforming amendment to Code section 228.6 6 relating to the compulsory disclosure of mental health and 7 psychological information. 8 The bill takes effect upon enactment. 9 -4- LSB 1506HV (2) 84 rh/rj 4/ 4