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Senate Study Bill 1094 - 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.
30(b) Upon a showing of a reasonable probability that the
31privileged records sought may likely contain exculpatory
32information that is not available from any other source, the
33court shall conduct an in camera review of such records to
34determine whether exculpatory information is contained in such
35records.
-1- 1(c) If exculpatory information is contained in such
2records, the court shall balance the need to disclose such
3information against the privacy interest of the privilege
4holder.
5(d) Upon the court’s determination, in writing, that the
6privileged information sought is exculpatory and that there
7is a compelling need for such information that outweighs the
8privacy interests of the privilege holder, the court shall
9issue an order allowing the disclosure of only those portions
10of the records that contain the exculpatory information. The
11court’s order shall also prohibit any further dissemination
12of the information to any person, other than the defendant,
13the defendant’s attorney, and the prosecutor, unless otherwise
14authorized by the court.
15b. Privileged information obtained by any means other than
16as provided in paragraph “a” shall not be admissible in any
17criminal action.
18 Sec. 3. EFFECTIVE UPON ENACTMENT. This Act, being deemed of
19immediate importance, takes effect upon enactment.
20EXPLANATION
21This bill relates to the discovery of privileged medical
22records, including mental health records, in a criminal case
23and includes effective date provisions.
24Under Iowa Code section 622.10, certain health care
25professionals, including mental health professionals,
26are prohibited, in giving testimony, from disclosing any
27confidential communication that occurs between the health care
28professional and a patient during the course of the patient’s
29course of treatment. In State v.Cashen, 789 N.W.2d 400
30(2010), the Iowa Supreme Court set forth certain protocol that
31must be followed to balance a patient’s right to privacy with
32a defendant’s right to present evidence to a jury that might
33influence the jury’s determination of guilt if privileged
34mental health records are made available in a criminal
35proceeding.
-2- 1The bill amends Code section 622.10 to provide that,
2except as otherwise provided in the bill, the confidentiality
3privilege under Code section 622.10 shall be absolute in
4relation to a criminal action and that the bill shall not
5be construed to authorize or require the disclosure of
6any privileged records to a defendant in a criminal action
7unless either the privilege holder voluntarily waives the
8confidentiality privilege or the defendant seeking access to
9privileged records files a motion demonstrating in good faith a
10reasonable probability that the information sought is likely to
11contain exculpatory information that is not available from any
12other source and for which there is a compelling need for the
13defendant to present a defense in the case.
14The bill provides that if the defendant files such a motion,
15the court shall conduct an in camera review of such records
16to determine whether exculpatory information is contained in
17such records upon a showing of a reasonable probability that
18the privileged records sought may likely contain exculpatory
19information that is not available from any other source. If
20exculpatory information is contained in such records, the court
21is required to balance the need to disclose such information
22against the privacy interest of the privilege holder. If
23the court determines that the privileged information sought
24is exculpatory and that there is a compelling need for such
25information that outweighs the privacy interests of the
26privilege holder, the court shall issue an order allowing the
27disclosure of only those portions of the records that contain
28the exculpatory information. The court’s order shall also
29prohibit any further dissemination of the information to any
30person, other than the defendant, the defendant’s attorney,
31and the prosecutor, unless otherwise authorized by the court.
32The bill provides that privileged information obtained by any
33means other than as provided in the bill is not admissible in
34a criminal action.
35The bill makes a conforming amendment to Code section 228.6
-3-1relating to the compulsory disclosure of mental health and
2psychological information.
3The bill takes effect upon enactment.
-4-
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.
30(b) Upon a showing of a reasonable probability that the
31privileged records sought may likely contain exculpatory
32information that is not available from any other source, the
33court shall conduct an in camera review of such records to
34determine whether exculpatory information is contained in such
35records.
-1- 1(c) If exculpatory information is contained in such
2records, the court shall balance the need to disclose such
3information against the privacy interest of the privilege
4holder.
5(d) Upon the court’s determination, in writing, that the
6privileged information sought is exculpatory and that there
7is a compelling need for such information that outweighs the
8privacy interests of the privilege holder, the court shall
9issue an order allowing the disclosure of only those portions
10of the records that contain the exculpatory information. The
11court’s order shall also prohibit any further dissemination
12of the information to any person, other than the defendant,
13the defendant’s attorney, and the prosecutor, unless otherwise
14authorized by the court.
15b. Privileged information obtained by any means other than
16as provided in paragraph “a” shall not be admissible in any
17criminal action.
18 Sec. 3. EFFECTIVE UPON ENACTMENT. This Act, being deemed of
19immediate importance, takes effect upon enactment.
20EXPLANATION
21This bill relates to the discovery of privileged medical
22records, including mental health records, in a criminal case
23and includes effective date provisions.
24Under Iowa Code section 622.10, certain health care
25professionals, including mental health professionals,
26are prohibited, in giving testimony, from disclosing any
27confidential communication that occurs between the health care
28professional and a patient during the course of the patient’s
29course of treatment. In State v.Cashen, 789 N.W.2d 400
30(2010), the Iowa Supreme Court set forth certain protocol that
31must be followed to balance a patient’s right to privacy with
32a defendant’s right to present evidence to a jury that might
33influence the jury’s determination of guilt if privileged
34mental health records are made available in a criminal
35proceeding.
-2- 1The bill amends Code section 622.10 to provide that,
2except as otherwise provided in the bill, the confidentiality
3privilege under Code section 622.10 shall be absolute in
4relation to a criminal action and that the bill shall not
5be construed to authorize or require the disclosure of
6any privileged records to a defendant in a criminal action
7unless either the privilege holder voluntarily waives the
8confidentiality privilege or the defendant seeking access to
9privileged records files a motion demonstrating in good faith a
10reasonable probability that the information sought is likely to
11contain exculpatory information that is not available from any
12other source and for which there is a compelling need for the
13defendant to present a defense in the case.
14The bill provides that if the defendant files such a motion,
15the court shall conduct an in camera review of such records
16to determine whether exculpatory information is contained in
17such records upon a showing of a reasonable probability that
18the privileged records sought may likely contain exculpatory
19information that is not available from any other source. If
20exculpatory information is contained in such records, the court
21is required to balance the need to disclose such information
22against the privacy interest of the privilege holder. If
23the court determines that the privileged information sought
24is exculpatory and that there is a compelling need for such
25information that outweighs the privacy interests of the
26privilege holder, the court shall issue an order allowing the
27disclosure of only those portions of the records that contain
28the exculpatory information. The court’s order shall also
29prohibit any further dissemination of the information to any
30person, other than the defendant, the defendant’s attorney,
31and the prosecutor, unless otherwise authorized by the court.
32The bill provides that privileged information obtained by any
33means other than as provided in the bill is not admissible in
34a criminal action.
35The bill makes a conforming amendment to Code section 228.6
-3-1relating to the compulsory disclosure of mental health and
2psychological information.
3The bill takes effect upon enactment.
-4-