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Senate File 291 - IntroducedA Bill ForAn Act 1relating to the discovery of privileged medical records,
2including mental health records, in a criminal case and
3including effective date provisions.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 228.6, subsection 4, Code 2011, is
2amended to read as follows:
34. a. Mental health information may be disclosed in a civil
4or administrative proceeding in which an individual eighteen
5years of age or older or an individual’s legal representative
6or, in the case of a deceased individual, a party claiming or
7defending through a beneficiary of the individual, offers the
8individual’s mental or emotional condition as an element of a
9claim or a defense.
10b. Mental health information may be disclosed in a criminal
11proceeding pursuant to section 622.10, subsection 3A.
12 Sec. 2. Section 622.10, Code 2011, is amended by adding the
13following new subsection:
14 NEW SUBSECTION. 3A. a. Except as otherwise provided in
15this subsection, the confidentiality privilege under this
16section shall be absolute with regard to a criminal action and
17this section shall not be construed to authorize or require
18the disclosure of any privileged records to a defendant in a
19criminal action unless either of the following occur:
20(1) The privilege holder voluntarily waives the
21confidentiality privilege.
22(2) (a) The defendant seeking access to privileged records
23under this section files a motion demonstrating in good faith a
24reasonable probability that the information sought is likely
25to contain exculpatory information that is not available from
26any other source and for which there is a compelling need for
27the defendant to present a defense in the case. Such a motion
28shall be filed not later than forty days after arraignment
29under seal of the court. Failure of the defendant to timely
30file such a motion constitutes a waiver of the right to seek
31access to privileged records under this section, but the court,
32for good cause shown, may grant relief from such waiver.
33(b) Upon a showing of a reasonable probability that the
34privileged records sought may likely contain exculpatory
35information that is not available from any other source, the
-1-1court shall conduct an in camera review of such records to
2determine whether exculpatory information is contained in such
3records.
4(c) If exculpatory information is contained in such
5records, the court shall balance the need to disclose such
6information against the privacy interest of the privilege
7holder.
8(d) Upon the court’s determination, in writing, that the
9privileged information sought is exculpatory and that there
10is a compelling need for such information that outweighs the
11privacy interests of the privilege holder, the court shall
12issue an order allowing the disclosure of only those portions
13of the records that contain the exculpatory information. The
14court’s order shall also prohibit any further dissemination
15of the information to any person, other than the defendant,
16the defendant’s attorney, and the prosecutor, unless otherwise
17authorized by the court.
18b. Privileged information obtained by any means other than
19as provided in paragraph “a” shall not be admissible in any
20criminal action.
21 Sec. 3. EFFECTIVE UPON ENACTMENT. This Act, being deemed of
22immediate importance, takes effect upon enactment.
23EXPLANATION
24This bill relates to the discovery of privileged medical
25records, including mental health records, in a criminal case
26and includes effective date provisions.
27Under Iowa Code section 622.10, certain health care
28professionals, including mental health professionals,
29are prohibited, in giving testimony, from disclosing any
30confidential communication that occurs between the health care
31professional and a patient during the course of the patient’s
32course of treatment. In State v.Cashen, 789 N.W.2d 400
33(2010), the Iowa Supreme Court set forth certain protocol that
34must be followed to balance a patient’s right to privacy with
35a defendant’s right to present evidence to a jury that might
-2-1influence the jury’s determination of guilt if privileged
2mental health records are made available in a criminal
3proceeding.
4The bill amends Code section 622.10 to provide that,
5except as otherwise provided in the bill, the confidentiality
6privilege under Code section 622.10 shall be absolute in
7relation to a criminal action and that the bill shall not
8be construed to authorize or require the disclosure of
9any privileged records to a defendant in a criminal action
10unless either the privilege holder voluntarily waives the
11confidentiality privilege or the defendant seeking access to
12privileged records files a motion demonstrating in good faith a
13reasonable probability that the information sought is likely
14to contain exculpatory information that is not available from
15any other source and for which there is a compelling need for
16the defendant to present a defense in the case. Failure of the
17defendant to timely file a motion constitutes a waiver of the
18right to seek access to privileged records but the court, for
19good cause shown, may grant relief from such waiver.
20The bill provides that if the defendant files such a motion,
21the court shall conduct an in camera review of such records
22to determine whether exculpatory information is contained in
23such records upon a showing of a reasonable probability that
24the privileged records sought may likely contain exculpatory
25information that is not available from any other source. If
26exculpatory information is contained in such records, the court
27is required to balance the need to disclose such information
28against the privacy interest of the privilege holder. If
29the court determines that the privileged information sought
30is exculpatory and that there is a compelling need for such
31information that outweighs the privacy interests of the
32privilege holder, the court shall issue an order allowing the
33disclosure of only those portions of the records that contain
34the exculpatory information. The court’s order shall also
35prohibit any further dissemination of the information to any
-3-1person, other than the defendant, the defendant’s attorney,
2and the prosecutor, unless otherwise authorized by the court.
3The bill provides that privileged information obtained by any
4means other than as provided in the bill is not admissible in
5a criminal action.
6The bill makes a conforming amendment to Code section 228.6
7relating to the compulsory disclosure of mental health and
8psychological information.
9The bill takes effect upon enactment.
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2including mental health records, in a criminal case and
3including effective date provisions.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 228.6, subsection 4, Code 2011, is
2amended to read as follows:
34. a. Mental health information may be disclosed in a civil
4or administrative proceeding in which an individual eighteen
5years of age or older or an individual’s legal representative
6or, in the case of a deceased individual, a party claiming or
7defending through a beneficiary of the individual, offers the
8individual’s mental or emotional condition as an element of a
9claim or a defense.
10b. Mental health information may be disclosed in a criminal
11proceeding pursuant to section 622.10, subsection 3A.
12 Sec. 2. Section 622.10, Code 2011, is amended by adding the
13following new subsection:
14 NEW SUBSECTION. 3A. a. Except as otherwise provided in
15this subsection, the confidentiality privilege under this
16section shall be absolute with regard to a criminal action and
17this section shall not be construed to authorize or require
18the disclosure of any privileged records to a defendant in a
19criminal action unless either of the following occur:
20(1) The privilege holder voluntarily waives the
21confidentiality privilege.
22(2) (a) The defendant seeking access to privileged records
23under this section files a motion demonstrating in good faith a
24reasonable probability that the information sought is likely
25to contain exculpatory information that is not available from
26any other source and for which there is a compelling need for
27the defendant to present a defense in the case. Such a motion
28shall be filed not later than forty days after arraignment
29under seal of the court. Failure of the defendant to timely
30file such a motion constitutes a waiver of the right to seek
31access to privileged records under this section, but the court,
32for good cause shown, may grant relief from such waiver.
33(b) Upon a showing of a reasonable probability that the
34privileged records sought may likely contain exculpatory
35information that is not available from any other source, the
-1-1court shall conduct an in camera review of such records to
2determine whether exculpatory information is contained in such
3records.
4(c) If exculpatory information is contained in such
5records, the court shall balance the need to disclose such
6information against the privacy interest of the privilege
7holder.
8(d) Upon the court’s determination, in writing, that the
9privileged information sought is exculpatory and that there
10is a compelling need for such information that outweighs the
11privacy interests of the privilege holder, the court shall
12issue an order allowing the disclosure of only those portions
13of the records that contain the exculpatory information. The
14court’s order shall also prohibit any further dissemination
15of the information to any person, other than the defendant,
16the defendant’s attorney, and the prosecutor, unless otherwise
17authorized by the court.
18b. Privileged information obtained by any means other than
19as provided in paragraph “a” shall not be admissible in any
20criminal action.
21 Sec. 3. EFFECTIVE UPON ENACTMENT. This Act, being deemed of
22immediate importance, takes effect upon enactment.
23EXPLANATION
24This bill relates to the discovery of privileged medical
25records, including mental health records, in a criminal case
26and includes effective date provisions.
27Under Iowa Code section 622.10, certain health care
28professionals, including mental health professionals,
29are prohibited, in giving testimony, from disclosing any
30confidential communication that occurs between the health care
31professional and a patient during the course of the patient’s
32course of treatment. In State v.Cashen, 789 N.W.2d 400
33(2010), the Iowa Supreme Court set forth certain protocol that
34must be followed to balance a patient’s right to privacy with
35a defendant’s right to present evidence to a jury that might
-2-1influence the jury’s determination of guilt if privileged
2mental health records are made available in a criminal
3proceeding.
4The bill amends Code section 622.10 to provide that,
5except as otherwise provided in the bill, the confidentiality
6privilege under Code section 622.10 shall be absolute in
7relation to a criminal action and that the bill shall not
8be construed to authorize or require the disclosure of
9any privileged records to a defendant in a criminal action
10unless either the privilege holder voluntarily waives the
11confidentiality privilege or the defendant seeking access to
12privileged records files a motion demonstrating in good faith a
13reasonable probability that the information sought is likely
14to contain exculpatory information that is not available from
15any other source and for which there is a compelling need for
16the defendant to present a defense in the case. Failure of the
17defendant to timely file a motion constitutes a waiver of the
18right to seek access to privileged records but the court, for
19good cause shown, may grant relief from such waiver.
20The bill provides that if the defendant files such a motion,
21the court shall conduct an in camera review of such records
22to determine whether exculpatory information is contained in
23such records upon a showing of a reasonable probability that
24the privileged records sought may likely contain exculpatory
25information that is not available from any other source. If
26exculpatory information is contained in such records, the court
27is required to balance the need to disclose such information
28against the privacy interest of the privilege holder. If
29the court determines that the privileged information sought
30is exculpatory and that there is a compelling need for such
31information that outweighs the privacy interests of the
32privilege holder, the court shall issue an order allowing the
33disclosure of only those portions of the records that contain
34the exculpatory information. The court’s order shall also
35prohibit any further dissemination of the information to any
-3-1person, other than the defendant, the defendant’s attorney,
2and the prosecutor, unless otherwise authorized by the court.
3The bill provides that privileged information obtained by any
4means other than as provided in the bill is not admissible in
5a criminal action.
6The bill makes a conforming amendment to Code section 228.6
7relating to the compulsory disclosure of mental health and
8psychological information.
9The bill takes effect upon enactment.
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