3.5Privileged Communications, Privileged Material, and Confidential Records

In Michigan, written or oral communications made in certain relationships are protected and are generally not discoverable.¹ A brief discussion on privileged communications, privileged material, and confidential records is contained in this section. For additional information on asserting or waiving a privilege, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 1.

A.Privileges Arising From a Marital Relationship

The two privileges that arise from a marital relationship under MCL 600.2162 are:

•the spousal privilege; and

•the confidential communications privilege.

1.Spousal Privilege

MCL 600.2162(2) establishes spousal privileges that limit the circumstances under which one spouse may “be examined as a witness for or against” the other spouse in criminal proceedings:

“In a criminal prosecution, a husband shall not be examined as a witness for or against his wife without his consent or a wife for or against her husband without her consent, except as provided in [MCL 600.2162(3)].”

2.Confidential Communication Privilege

MCL 600.2162(7) establishes confidential communication privileges limiting the circumstances under which an individual may “be examined” in criminal proceedings² regarding communications that occurred between the individual and his or her spouse during their marriage:

“Except as otherwise provided in [MCL 600.2162(3)], a married person or a person who has been married previously shall not be examined in a criminal prosecution as to any communication made between that person and his or her spouse or former spouse during the marriage without the consent of the person to be examined.”

3.Exceptions to Privileges Arising From Marital Relationship

“The spousal privileges established in [MCL 600.2162(1)] and [MCL 600.2162(2)] and the confidential communications established in [MCL 600.2162(7)] do not apply in any of the following:

(a) In a suit for divorce, separate maintenance, or annulment.

(b) In a prosecution for bigamy.

(c) In a prosecution for a crime committed against a child of either or both or a crime committed against an individual who is younger than 18 years of age.

(d) In a cause of action that grows out of a personal wrong or injury done by one to the other or that grows out of the refusal or neglect to furnish the spouse or children with suitable support.

(e) In a case of desertion or abandonment.

(f) In a case in which the husband or wife is a party to the record in a suit, action, or proceeding if the title to the separate property of the husband or wife called or offered as a witness, or if the title to property derived from, through, or under the husband or wife called or offered as a witness, is the subject matter in controversy or litigation in the suit, action, or proceeding, in opposition to the claim or interest of the other spouse, who is a party to the record in the suit, action, or proceeding. In all such cases, the husband or wife who makes the claim of title, or under or from whom the title is derived, shall be as competent to testify in relation to the separate property and the title to the separate property without the consent of the husband or wife, who is a party to the record in the suit, action, or proceeding, as though the marriage relation did not exist.” MCL 600.2162(3).

The defendant’s wife could be compelled to testify against him where the charged crime against a third party grew out of a personal wrong or injury committed by the defendant against his wife. People v Hill, 335 Mich App 1, 13 (2020) (defendant made physical contact with his wife who feared for her safety, causing her to ask the third party for help, and the defendant shot the third party; although, “defendant was not charged with an offense against [his wife],” his “purpose in allegedly shooting [the third party] was to facilitate his assault against [his wife]”). See also MCL 600.2162(2)-(3).

“[T]he legal right not to testify [established] in [MCL 600.2162(2)] . . . is specifically limited by [MCL 600.2162(3)], which states that the spousal privilege established in [MCL 600.2162(2)] ‘do[es] not apply’ in certain cases[.]” People v Szabo, 303 Mich App 737, 747 (2014). “When such an ‘exception’ exists the effect, then, is not that the ownership of the spousal privilege transfers from the one spouse to the other . . . ; rather, the effect is that no spousal privilege exists at all.” Id. at 748. Accordingly, a victim-spouse may be compelled to testify against his or her defendant-spouse. Id. at 749. In Szabo, the victim-wife “was not vested with a spousal privilege [under MCL 600.2162(2)]” and could be compelled to testify where “[the] defendant[-husband] was charged with felonious assault and felony-firearm arising from criminal actions he allegedly committed against [her]” because those actions gave rise to a “cause of action [that grew] out of a personal wrong or injury done by the defendant-spouse against the victim-spouse.’” Szabo, 303 Mich App at 748, 749, quoting MCL 600.2162(3)(d).

B.Privileged Communications with Care Providers

The Michigan Legislature has enacted a number of statutes that limit the use of communications with various care providers as evidence in civil or criminal trials.

1.Sexual Assault and Domestic Violence Counselors

Communications between a victim and a sexual assault or domestic violence counselor are protected under MCL 600.2157a(2):

“Except as provided by . . . [MCL] 722.631,^[3] . . . a confidential communication, or any report, working paper, or statement contained in a report or working paper, given or made in connection with a consultation between a victim and a sexual assault or domestic violence counselor, shall not be admissible as evidence in any civil or criminal proceeding without the prior written consent of the victim.”

If a sexual assault or domestic violence counselor is also licensed, certified, or identified as a social worker, psychologist, or other professional, additional privileges may apply:

•Social workers (MCL 333.18513);⁴

•Psychiatrists (MCL 330.1750);⁵

•Psychologists (MCL 330.1750; MCL 333.18237);⁶

•Physicians (MCL 600.2157);⁷ and

•Clergy (MCL 767.5a(2)).⁸

2.Licensed Professional Counselors

Confidential relationships and communications between a victim-client and a licensed professional counselor are protected under MCL 333.18117:

“For the purposes of this part, the confidential relations and communications between a licensed professional counselor or a limited licensed counselor and a client of the licensed professional counselor or a limited licensed counselor are privileged communications, and this part does not require a privileged communication to be disclosed, except as otherwise provided by law. . . .”

There are three additional ways in which a privileged communication with a licensed professional counselor or limited licensed counselor may be disclosed:

•consent by the client,

•if the counselor “reasonably believes it is necessary to disclose the information to comply with [MCL 333.16222],”⁹ or

•if the counselor receives a request for medical records or information from the Department of Health and Human Services for purposes of initiating a child abuse or neglect investigation under MCL 333.16281. MCL 333.18117.

3.Social Workers

Communications between a victim-client and a social worker are protected under MCL 333.18513(1)-(2):

“(1) An individual registered or licensed under this part or an employee or officer of an organization that employs the registrant or licensee is not required to disclose a communication or a portion of a communication made by a client to the individual or advice given in the course of professional employment.

(2) Except as otherwise provided in this section, a communication between a registrant or licensee or an organization with which the registrant or licensee has an agency relationship and a client is a confidential communication. . . .”

See People v Carrier, 309 Mich App 92, 112-113 (2015) (extending the privilege under MCL 333.18513 to a client whose communications were with an employee who had a limited license, bachelor’s of social work).

“A confidential communication [between a victim and his or her social worker] shall not be disclosed, except under either or both of the following circumstances:

(a) The disclosure is part of a required supervisory process within the organization that employs or otherwise has an agency relationship with the registrant or licensee.

(b) The privilege is waived by the client or a person authorized to act in the client’s behalf.” MCL 333.18513(2).

A child’s parent who has at least joint custody “is a person authorized to act in the child’s behalf and, hence, [can] waive the [social worker-client] privilege.” Thames v Thames, 191 Mich App 299, 303 (1991).¹⁰ However, a parent-defendant may not assert the social worker-client privilege on the child’s behalf, especially where the assertion is an attempt “to suppress evidence of activity by the parent that could be harmful to the child[.]” People v Wood, 447 Mich 80, 90-91 (1994) (“As a general rule, criminal defendants do not have standing to assert the rights of third parties.”).

In addition, MCL 333.18513(4) permits the disclosure of a privileged communication, or a portion thereof, where a mental health professional’s¹¹ duty to warn or protect under MCL 330.1946. MCL 330.1946(1) provides:

“If a patient communicates to a mental health professional who is treating the patient a threat of physical violence against a reasonably identifiable third person and the recipient has the apparent intent and ability to carry out that threat in the foreseeable future, the mental health professional has a duty to take action as prescribed in subsection (2). Except as provided in this section, a mental health professional does not have a duty to warn a third person of a threat as described in this subsection or to protect the third person.”

In Carrier, although the defendant’s communications with an emergency services specialist through a mental health crisis hotline were generally privileged communication under MCL 333.18513, the defendant “effectively and permanently waived or lost” the privilege once the defendant communicated to the specialist specific physical threats of shooting his ex-girlfriend, any police officers who showed up at his home, and the specialist’s family, and the defendant “had the apparent intent and ability to carry out the[se] threats in the foreseeable future” by “list[ing to the specialist] the types of guns that he had in his possession and expressed that he had ammunition.” Carrier, 309 Mich App at 97-98, 119-120. “[T]he Legislature, in enacting MCL 330.1946, intended and envisioned the use of an otherwise privileged communication in a court case or proceeding when the duty to warn or protect was indeed implicated in a given matter.” Carrier, 309 Mich App at 117.

4.Psychiatrists and Psychologists

Communications between a victim-patient and a psychiatrist or psychologist are protected under the Mental Health Code, MCL 330.1750(1):

“Privileged communications shall not be disclosed in civil, criminal, legislative, or administrative cases or proceedings, or in proceedings preliminary to such cases or proceedings, unless the patient has waived the privilege, except in the circumstances set forth in this section.”

“[T]he fact that the patient has been examined or treated or undergone a diagnosis” is also privileged from disclosure with certain exceptions for requests by health care insurance companies and other health care and dental care-related organizations. MCL 330.1750(3).

Communications between a patient and a psychologist are also protected under the Public Health Code, MCL 333.18237. MCL 333.18237 provides that, without client consent, “[a] psychologist . . . or an individual under his or her supervision cannot be compelled to disclose confidential information acquired from an individual consulting the psychologist in his or her professional capacity if the information is necessary to enable the psychologist to render services.”

Communications between a patient and a psychiatrist may also fall under the physician-patient privilege. See MCL 600.2157. For a discussion of the physician-patient privilege, see Section 3.5(B)(5).

a.Waiver of Privilege

Under the Mental Health Code, a patient may waive the patient-psychiatrist or patient-psychologist privilege, in which case communications with that professional could be disclosed. MCL 330.1750(1).

b.Court-Ordered Examination: Mandatory Disclosure of Privileged Communication

A privileged communication must be disclosed upon request if it was made during a court-ordered examination, and the victim-patient was informed before the examination that the communication would not be privileged. MCL 330.1750(2)(e).¹² The communication may “only [be used] with respect to the particular purpose for which the examination was ordered.” Id. For example, although the defendant would have been informed that communications between him and his social worker regarding a risk assessment evaluation “could be used in the sentencing memorandum, or discussed during sentencing, there was no evidence that he was aware that the contents of the risk assessment/ evaluation would be subject to disclosure if he were permitted to withdraw his plea and proceed to trial.” People v Cowhy, 330 Mich App 452, 470 (2019) (finding that the social worker’s testimony was inadmissible at trial because the communications “could only be disclosed to the trial court for sentencing purposes in accordance with MCL 330.1750(2)(e), and must otherwise remain protected by the psychologist-patient privilege”).

c.Discretionary Disclosure of Privileged Communication

Under the Mental Health Code, MCL 330.1750(4) permits the disclosure of a privileged communication where a psychiatrist’s or psychologist’s duty to warn or protect under MCL 330.1946 is implicated.MCL 330.1946(1) provides:

“If a patient communicates to a mental health professional who is treating the patient a threat of physical violence against a reasonably identifiable third person and the recipient has the apparent intent and ability to carry out that threat in the foreseeable future, the mental health professional has a duty to take action as prescribed in subsection (2). Except as provided in this section, a mental health professional does not have a duty to warn a third person of a threat as described in this subsection or to protect the third person.”

Under the Public Health Code, MCL 333.18237 permits disclosure of a privileged communication otherwise protected by the psychologist-patient privilege in the following situations:

•by consent of the patient,

•if the psychologist or psychiatrist “reasonably believes it is necessary to disclose the information to comply with [MCL 333.16222],”¹³ or

•if the counselor receives a request for medical records or information from the Department of Health and Human Services for purposes of initiating a child abuse or neglect investigation under MCL 333.16281.

5.Physicians

Information that a physician acquires from a victim-patient is protected under MCL 600.2157:¹⁴

“Except as otherwise provided by law, a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribe for the patient as a physician, or to do any act for the patient as a surgeon. . . .”

See also MCL 767.5a(2), which also protects communications between a victim-patient and physician when the communications are necessary for the physician to serve as such to the patient.

The physician-patient privilege “protects ‘any information’ that is ‘acquired’ by a physician in the course of treating a patient, as long as that information is necessary to treat the patient.” People v Childs, 243 Mich App 360, 368 (2000) (extending the physician-patient privilege to unconscious patients).

a.Physician-Patient Privilege is Automatic

The physician-patient privilege under MCL 600.2157 automatically “arises by operation of MCL 600.2157 upon the development of a physician-patient relationship” and not by a patient’s “[e]xpress or implied invocation of the privilege[.]” Meier v Awaad, 299 Mich App 655, 668 (2013). Once the physician-patient privilege exists, the privilege remains in existence until waived by the patient. Id. 

b.Waiver of Privilege

The physician-patient privilege may only be waived by the patient or, if the patient is deceased, the personal representative of the deceased’s estate.¹⁵ Scott v Henry Ford Hosp, 199 Mich App 241, 243 (1993).

c.Exception to Privileged Communication

MCL 750.411(6) provides for an exception to the physician-patient privilege where a physician’s or surgeon’s duty to report to local law enforcement under MCL 750.411(2) is implicated when he or she is caring for a patient “suffering from a wound or other injury inflicted by means of a knife, gun, pistol, or other deadly weapon, or by other means of violence[.]” MCL 750.411(1)-(2) (requiring the physician and surgeon to report “the name and residence of the [wounded] person, if known, his or her whereabouts, and the cause, character, and extent of the injuries and may state the identification of the perpetrator, if known[]”).

6.Clergy

Communications between a victim-church member and a cleric are protected under MCL 767.5a(2):

“Any communications . . . between members of the clergy and the members of their respective churches . . . are hereby declared to be privileged and confidential when those communications were necessary to enable the . . . members of the clergy . . . to serve as such . . . member of the clergy . . . .”

See also MCL 600.2156, which also protects “confessions made to [the cleric] in his [or her] professional character, in the course of discipline enjoined by the rules or practice of such denomination.”

Note: Although MCL 600.2156 and MCL 767.5a both appear to contain a cleric-congregant privilege, the Court of Appeals concluded that only MCL 767.5a contains an evidentiary privilege. People v Bragg, 296 Mich App 433, 453 (2012). “The evidentiary privilege [under MCL 767.5a(2)] . . . is broader than MCL 600.2156 in one important sense. MCL 600.2156 only precludes the disclosure of ‘confessions,’ while the evidentiary privilege of MCL 767.5a(2) addresses the use of ‘any communication.’” Bragg, 296 Mich App at 453. Specifically,

“Read together and harmonized, the more specific MCL 767.5a(2) creates an evidentiary privilege, precluding the incriminatory use of ‘any communication’ made by a congregant to his or her cleric when that communication was ‘necessary to enable the’ cleric ‘to serve as such’ cleric. That statute governs the specific use of a defendant’s statements against him or her in court. MCL 600.2156 more broadly precludes a cleric from disclosing certain covered communications in other situations, not limited to the courtroom. It does not qualify as an evidentiary privilege.” Bragg, 296 Mich App at 453.

MCL 767.5a(2) prohibits a cleric from revealing in court a congregant’s statements that were made to the cleric in confidence. Bragg, 296 Mich App at 453. Specifically, MCL 767.5a(2) precludes “the incriminatory use of ‘any communication’ made by a congregant to his or her cleric when that communication was ‘necessary to enable the’ cleric ‘to serve as such’ cleric.” Bragg, 296 Mich App at 453. For a communication to be “necessary to enable a cleric to serve as a cleric[,] . . . the communication [must] serve[] a religious function such as providing guidance, counseling, forgiveness, or discipline.” Id. at 455. “The congregant cannot speak to the cleric in his or her role as a relative, friend, or employer and receive the benefit of the evidentiary privilege.” Id. at 458-459.

In Bragg, 296 Mich App at 462, “[the] [d]efendant’s statements to [the cleric] [fell] within the statutory scope of privileged and confidential communications under MCL 767.5a(2). The communication was necessary to enable [the cleric] to serve as a pastor, because [the] defendant communicated with [the cleric] in his professional character in the course of discipline enjoyed by the Baptist Church.^” Specifically, the Court of Appeals found the following facts relevant:

“The communication between [the] defendant and [the cleric] served a religious function—it enabled [the cleric] to provide guidance, counseling, forgiveness, and discipline to [the] defendant. [The cleric] testified that he wanted ‘to get [the] [defendant] some help,’ and the first step necessitated that [the] defendant admit his actions. [The cleric] averred that he ‘consoled’ [the] defendant and counseled him as ‘a loving broken hearted minister.’

[The cleric] also spoke with [the] defendant in his ‘professional character’ as a pastor. [The cleric] explicitly stated that he ‘interrogate[d]’ [the] defendant ‘[i]n [his] role as a pastor.’ Once [the cleric] convinced [the] defendant to speak about the sexual assault, the pastor prayed with [the] defendant. This was not a secular conversation. If [the cleric] had not been a pastor, the communication would not have occurred. Because of [the cleric’s] authority as the church pastor, he was able to summon [the] defendant and his mother to the church office and expect their attendance. Inside the pastor’s office, the trio did not discuss secular topics such as [the mother’s] employment at the church. They spoke only of the victim’s accusation that [the] defendant had committed a sin and a criminal act against her.

The communication was also made in the course of discipline enjoined by the Baptist Church. . . .^[16] [The cleric] testified that under Baptist doctrine, his communication with [the] defendant would be considered confidential, and yet [the cleric] claimed that his sharing [the] defendant’s communication with the police and the victim’s family did not violate that confidence. . . . [The cleric] also testified that providing counseling and guidance services are a part of his role as a Baptist minister.

The record clearly establishes that [the] defendant’s communication to [the cleric] falls within MCL 767.5a(2)’s scope. The communication was therefore privileged and confidential. [The cleric] was not permitted to divulge the content of the communication at the preliminary examination, and the circuit court correctly precluded any further use of that evidence.” Bragg, 296 Mich App at 462-463.

a.Initiation of Conversation Irrelevant for Privilege Purposes

The term communication as used in MCL 767.5a(2) “in no way suggests that the congregant must initiate the conversation in order for the privilege to apply.” Bragg, 296 Mich App at 464. Rather, “it is irrelevant to the statutory-privilege analysis [who] . . . initiate[s] the conversation.” Id. at 465.

b.Waiver of Privilege

“[A] congregant may waive the cleric-congregant privilege by ‘giving evidence of what took place at the confessional,’ or sharing the content of the otherwise privileged communication with a third party[.]” Bragg, 296 Mich App at 466, quoting People v Lipsczinska, 212 Mich 484, 493 (1920).

7.School Teachers and School Staff Members

Communications between a victim-student and a school teacher or school staff member are protected under MCL 600.2165:

“No teacher, guidance officer, school executive or other professional person engaged in character building in the public schools or in any other educational institution, including any clerical worker of such schools and institutions, who maintains records of students’ behavior or who has records in his [or her] custody, or who receives in confidence communications from students or other juveniles, shall be allowed in any proceedings, civil or criminal, in any court of this state, to disclose any information obtained by him [or her] from the records or such communications; nor to produce records or transcript thereof, except that testimony may be given, with the consent of the person so confiding or to whom the records relate, if the person is 18 years of age or over, or, if the person is a minor, with the consent of his or her parent or legal guardian.”

8.Sign Language Interpreters

Communications between a deaf or deaf-blind victim and a sign language interpreter are protected under MCL 393.506(2):

“The information that the qualified interpreter, intermediary interpreter, or deaf interpreter gathers from the deaf or deaf-blind person pertaining to any action or other pending proceeding shall at all times remain confidential and privileged, unless the deaf or deaf-blind person executes a written waiver allowing the information to be communicated to other persons and the deaf or deaf-blind person is present at the time the information is communicated.”

9.Abrogation of Privileges in Cases Involving Suspected Child Abuse or Child Neglect

If a person listed as a mandatory reporter under MCL 722.623(1) suspects that a child is being abused or neglected, the person must report the suspected child abuse or child neglect.¹⁷ MCL 722.623(1).

“MCL 722.631 governs privileges in child protective proceedings.” MCR 3.901(A)(3). MCL 722.631 provides:

“Any legally recognized privileged communication except that between attorney and client or that made to a member of the clergy in his or her professional character in a confession or similarly confidential communication is abrogated and shall not constitute grounds for excusing a report otherwise required to be made or for excluding evidence in a civil child protective proceeding resulting from a report made pursuant to [the Child Protection Law]. This section does not relieve a member of the clergy from reporting suspected child abuse or child neglect under [MCL 722.623] if that member of the clergy receives information concerning suspected child abuse or child neglect while acting in any other capacity listed under [MCL 722.623].”

“[A] communication [between a member of the clergy and a church member] [was] within the meaning of ‘similarly confidential communication’ when the church member d[id] not make an admission, but ha[d] a similar expectation that the information [would] be kept private and secret.” People v Prominski, 302 Mich App 327, 328, 336-337 (2013) (where the parishioner “went to [her pastor] ‘for guidance[ and] advice’” to discuss “her concerns that her husband was abusing her daughters” and “‘expected that the conversation be kept private[,]’” the parishioner’s communication with the pastor was a confidential communication as contemplated by MCL 722.631, and the pastor was not required to report the suspected child abuse under the mandatory reporting statute, MCL 722.623(1)(a)).

Abrogation of privileges under MCL 722.631 does not depend on whether the person initiating the child protective proceeding was required to report the suspected abuse, or whether the proffered testimony directly addresses the abuse or neglect that gave rise to the protective proceeding. In re Brock, 442 Mich 101, 116-120 (1993) (physician and psychologist were permitted to testify concerning a parent’s past history of mental illness despite the fact that a neighbor reported the suspected neglect that gave rise to the proceeding). See also MCR 3.973(E)(1), which states in relevant part that, “as provided by MCL 722.631, no assertion of an evidentiary privilege, other than the privilege between attorney and client, shall prevent the receipt and use, at the dispositional phase, of materials prepared pursuant to a court-ordered examination, interview, or course of treatment.”

C.Privileged Material and Confidential Records

1.Work-Product Privilege

An attorney’s work product, including notes of interviews with witnesses whom the attorney intends to call at trial, is not discoverable. People v Holtzman, 234 Mich App 166, 168‐169 (1999); People v Gilmore, 222 Mich App 442, 453 (1997).

Note, however, that “written witness statements that have been signed or otherwise adopted or approved by the persons who made them, MCR 2.302(B)(3)(c)(i), and verbatim recorded statements as described in MCR 2.302(B)(3)(c)(ii) qualify as ‘statements’ under MCR 6.201(A)(2)[ and may be subject to disclosure].”¹⁸ Holtzman, 234 Mich App at 178-179. However, in Holtzman, the “trial court . . . erred in ruling that the [attorney] notes constituted a discoverable statement” where “the witness merely checked the notes for inaccuracies and for information about what questions the prosecutor would ask.” Id. at 180.

Additionally, “a prosecutor’s entire work product is privileged from disclosure under the [Freedom of Information Act (FOIA), MCL 15.231 et seq.].” Messenger v Ingham Co Prosecutor, 232 Mich App 633, 641 (1998). See also MCL 15.243(1)(g).

2.Mental Health Records

MCL 330.1748(1) provides for the confidentiality of mental health records:

“Information in the record of a recipient, and other information acquired in the course of providing mental health services to a recipient, shall be kept confidential and is not open to public inspection. The information may be disclosed outside the department, community mental health services program, licensed facility, or contract provider, whichever is the holder of the record, only in the circumstances and under the conditions set forth in this section or [MCL 330.1748a¹⁹].”

a.Confidentiality is Waived

Mental health records may be disclosed with the consent of the holder of the record and the recipient of treatment. Kearney v Dep’t of Mental Health, 168 Mich App 406, 409 (1988).

b.Exceptions to Confidentiality

Relevant to criminal proceedings,²⁰ confidential information may be disclosed under court order or subpoena, unless protected by privilege; or when necessary to comply with another provision of law. MCL 330.1748(5)(a); MCL 330.1748(5)(d).

3.Prescription Records

“A prescription or equivalent record on file in a pharmacy is not a public record.” MCL 333.17752(2).

a.Confidentiality is Waived

“A person having custody of or access to prescriptions shall not disclose their contents or provide copies without the patient’s authorization[.]” MCL 333.17752(2).

b.Exception to Confidentiality

“A prescription or equivalent record on file in a pharmacy” may be disclosed without the patient’s authorization to “[a] person authorized by a court order.” MCL 333.17752(2)(d).²¹

4.Records of Federal Drug or Alcohol Abuse Treatment Programs

“Records of the identity, diagnosis, prognosis, or treatment of any patient” in any federal drug or alcohol abuse prevention program are confidential. 42 USC 290dd-2(a). 

a.Confidentiality is Waived

Disclosure of drug or alcohol abuse treatment program records is permissible with the patient’s written consent, “but only to such extent, under such circumstances, and for such purposes as may be allowed under [42 CFR 2.]” 42 USC 290dd-2(b)(1).

b.Exception to Confidentiality

Regardless of patient consent, disclosure is permissible where a court orders disclosure of any or all portions of the record it deems necessary on a showing of good cause. 42 USC 290dd-2(b)(2)(C); 42 CFR 2.64(d). To make a good cause determination, “the court must find that:

(1) Other ways of obtaining the information are not available or would not be effective; and

(2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.”²² 42 CFR 2.64(d).

Before ordering disclosure of confidential information, the circuit court should make a record of the findings that constitute good cause under 42 CFR 2.64(d). In re Petition of Attorney General for Subpoenas, 506 Mich 997 (2020). In Petition for Subpoenas, the circuit court erred when it failed to determine “whether other ways of obtaining the information in question were available or effective.” In re Petition of Attorney General for Subpoenas, 506 Mich at 997; 42 CFR 2.64(d)(1). Although “[p]etitioner asserted the subpoena was the most effective method [of obtaining the information], . . . that is not the inquiry 42 CFR 2.64(d)(1) requires.” Petition for Subpoenas, 506 Mich at 997. In addition, the circuit court failed to make the second finding required to constitute good cause—whether the public interest and need for the disclosure outweighed potential injury to the patient, to the relationship between the patient and his or her physician, and to the treatment services. Id.; 42 CFR 2.64(d)(2). In Petition for Subpoenas, 506 Mich at 997, the petitioner asserted that the court’s order for disclosure incorporated in it the contents of the petition, but the order did not expressly indicate that it did so. According to the Michigan Supreme Court, “[e]ven assuming such an incorporation would have satisfied 42 CFR 2.64(d), the best practice would clearly be for a circuit court to memorialize this type of analysis in a written order or at least on the record to facilitate appellate review.” Petition for Subpoenas, 506 Mich at 997.

“Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.” 42 USC 290dd-2(b)(2)(C). Safeguards against unauthorized disclosure include “requir[ing] the deletion of patient identifying information from any documents made available to the public” (when the disclosure is being ordered in the context of a criminal or administrative investigation of a record holder); “limit[ing] disclosure to those parts of the patient’s records which are essential to fulfill the objective of the order; [l]imiting disclosure to those persons whose need for information is the basis for the order; and [i]nclude such other measures as are necessary to limit disclosure for the protection of the patient, the physician-patient relationship and the treatment services[, for example, sealing from public scrutiny the record of any proceeding for which disclosure of a patient’s record has been ordered].” 42 CFR 2.64(e); 42 CFR 2.66(d)(1).

All administrative hearings pertaining to the disclosure of confidential information need not “be closed and sealed from public scrutiny.” Petition for Subpoenas, 506 Mich at 997 n 1. “[C]ourtroom closure and sealing of records are examples of procedural safeguards a court may order [under 42 CFR 2.64(e)], but the regulation does not require these steps be fulfilled in every case so long as all necessary measures are taken to protect a patient, the patient-physician relationship, and treatment services.” Petition for Subpoenas, 506 Mich at 997 n 1.

No hearing is required before the circuit court may issue a subpoena pursuant to 42 CFR 2.66. Petition for Subpoenas, 556 Mich at 997.

Disclosure is also permissible where the disclosure is necessary to protect against an existing threat to life, or a threat of serious bodily injury, including circumstances that constitute suspected child abuse or neglect and verbal threats against third parties, or if disclosure is necessary to investigate or prosecute child abuse or neglect. 42 CFR 2.63(a)(1)-(2).

5.Records of Child Abuse or Child Neglect Investigations

The Department of Health and Human Services (DHHS)²³ is required to maintain a registry of reports filed under the Child Protection Law, MCL 722.621 et seq., in which relevant and accurate evidence of child abuse or child neglect is found. MCL 722.622(c). MCL 722.627(1) allows only limited access to such records:

“(1) Unless made public as specified information released under [MCL 722.627d], a written report, document, or photograph filed with the [DHHS] as provided in [the Child Protection Act] is a confidential record available only to 1 or more of the following:

* * *

(f) A person named in the report or record as a perpetrator or alleged perpetrator of the child abuse or child neglect or a victim who is an adult at the time of the request, if the identity of the reporting person is protected as provided in [MCL 722.625].

(g) A court for the purposes of determining the suitability of a person as a minor’s guardian or that otherwise determines that the information is necessary to decide an issue before the court, or in the event of a child’s death, a court that had jurisdiction over that child under [MCL 712A.2(b).]”

For additional information on the DHHS central registry of reports filed under the Child Protection Law, see the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Chapter 2.