House Study Bill 64 - Introduced HOUSE FILE _____ BY (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON ANDERSON) A BILL FOR An Act relating to the discovery of privileged medical records, 1 including mental health records, in a criminal case and 2 including effective date provisions. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 1506HC (5) 84 rh/rj

H.F. _____ 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. 29 (b) Upon a showing of a reasonable probability that the 30 privileged records sought may likely contain exculpatory 31 information that is not available from any other source, the 32 court shall conduct an in camera review of such records to 33 determine whether exculpatory information is contained in such 34 records. 35 -1- LSB 1506HC (5) 84 rh/rj 1/ 4

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

H.F. _____ The bill amends Code section 622.10 to provide that, 1 except as otherwise provided in the bill, the confidentiality 2 privilege under Code section 622.10 shall be absolute in 3 relation to a criminal action and that the bill shall not 4 be construed to authorize or require the disclosure of 5 any privileged records to a defendant in a criminal action 6 unless either the privilege holder voluntarily waives the 7 confidentiality privilege or the defendant seeking access to 8 privileged records files a motion demonstrating in good faith a 9 reasonable probability that the information sought is likely to 10 contain exculpatory information that is not available from any 11 other source and for which there is a compelling need for the 12 defendant to present a defense in the case. 13 The bill provides that if the defendant files such a motion, 14 the court shall conduct an in camera review of such records 15 to determine whether exculpatory information is contained in 16 such records upon a showing of a reasonable probability that 17 the privileged records sought may likely contain exculpatory 18 information that is not available from any other source. If 19 exculpatory information is contained in such records, the court 20 is required to balance the need to disclose such information 21 against the privacy interest of the privilege holder. If 22 the court determines that the privileged information sought 23 is exculpatory and that there is a compelling need for such 24 information that outweighs the privacy interests of the 25 privilege holder, the court shall issue an order allowing the 26 disclosure of only those portions of the records that contain 27 the exculpatory information. The court’s order shall also 28 prohibit any further dissemination of the information to any 29 person, other than the defendant, the defendant’s attorney, 30 and the prosecutor, unless otherwise authorized by the court. 31 The bill provides that privileged information obtained by any 32 means other than as provided in the bill is not admissible in 33 a criminal action. 34 The bill makes a conforming amendment to Code section 228.6 35 -3- LSB 1506HC (5) 84 rh/rj 3/ 4

H.F. _____ relating to the compulsory disclosure of mental health and 1 psychological information. 2 The bill takes effect upon enactment. 3 -4- LSB 1506HC (5) 84 rh/rj 4/ 4