Section 21 Experimental Research

• Library: Mental Health 2006

Patients are entitled to participate in experimental research only with the patient’s prior written and informed consent, or that of the patient’s parent or legal guardian. Section 630.115.1(8), RSMo 2000. Patients also have the right to withdraw from any research at any time for any reason. Section 630.115.1(9).

Patients who are being civilly detained may not participate in any experimental research without a specific court order. Section 630.192, RSMo 2000. The court will only approve research if it is intended to alleviate or prevent the disabling conditions of the patient or is reasonably expected to be of direct therapeutic benefit to the patient. Id. The application for the court order shall be filed in the court having probate jurisdiction in the county in which the patient is located unless the patient requests that the hearing be held by the court that has committed the patient. Id.

Confidentiality

(§5.22) General Legal Requirements

Health information about a patient is generally considered to be confidential and privileged, and therefore cannot be disclosed without specific authorization. There are various laws that establish the privileges afforded to patient records, including the:

• physician-patient privilege, § 491.060(5), RSMo 2000
• psychologist-patient privilege, § 337.055, RSMo 2000
• dentist-patient privilege, § 491.060
• professional counselor-patient privilege, § 337.540, RSMo 2000; and
• clinical social worker-patient privilege, § 337.636, RSMo 2000

Hospital medical records are considered to be privileged under the physician-patient privilege. Leritz v. Koehr, 844 S.W.2d 583, 584 (Mo. App. E.D. 1993); State v. Evans, 802 S.W.2d 507, 511 (Mo. banc 1991).

There is no exception to allow disclosure of patient records without legal authorization because the patient has died. The health care provider-patient privilege survives death. Leritz, 844 S.W.2d at 584. Only the patient’s personal representative may waive the deceased’s provider-patient privilege. Fitzgerald v. Metro. Life Ins. Co., 149 S.W.2d 389 (Mo. App. E.D. 1941). “‘Personal representative’ means executor or administrator.” Section 472.010(26), RSMo 2000. It also refers to those to whom letters testamentary or letters of administration have been issued. Sections 473.017 et seq., RSMo 2000.

In civil detention proceedings, the physician-patient privilege and the psychologist-patient privilege are waived. Section 632.425, RSMo 2000. But the waiver of the privileges in civil detention proceedings does not waive the privileges in any other proceeding, civil or criminal. Id. “The waiver of the privileges shall extend only to that evidence which is directly material and relevant to detention procedures.” Id.

(§5.23) Behavioral Health

All information and records compiled, obtained, prepared, or maintained by a facility or program operated, funded, or licensed by the Department of Mental Health must remain confidential. Section 630.140.1, RSMo Supp. 2005. Federal law also provides that a mental health patient has the right to confidentiality of their records. 42 U.S.C. § 9501(1)(H).

Persons who are responsible for a patient’s well-being shall have access to all information and records pertaining to the patient upon request. The following persons are entitled to such information and records:

• The parent of a minor patient
• The guardian or other legal representative of a patient

• The attorney of a patient who is a ward of the juvenile court, an alleged incompetent, an incompetent ward, or a person detained under a civil detention application or proceeding

• An attorney or personal physician as authorized by the patient

• Law enforcement officers and agencies, to the extent necessary to carry out the responsibilities of their office

• “The entity or agency authorized to implement a system to protect and advocate the rights of...