DISCLOSURES IN LEGAL PROCEEDINGS
Information regarding a DMH Consumer or a person for whom commitment has been sought is protected by applicable federal and state law and may be used or disclosed only under the conditions described in the DMH Privacy Practices Directive.
Depositions: If a DMH employee is subpoenaed to provide testimony and/or provide documents (i.e., "subpoena ducus tecum") in a civil deposition, send a reply “SCDMH NOTICE OF APPLICABLE PRIVACY LAW” to the attorney issuing the subpoena, notifying the attorney that such information cannot be provided without compliance with HIPAA and Section 44-22-100 of the Code of Laws of South Carolina. Unless excused by the attorney, the employee must go to the place designated, but should not provide information regarding the Consumer’s PHI unless a court order is provided or the Consumer has signed an Authorization giving authority for such disclosure, or other exception as described in the DMH Privacy Practices Directive.
Other subpoenas or requests for documents: If an employee is subpoenaed or receives a request from an attorney or other person or entity, to provide documents (i.e., "subpoena ducus tecum"), send a reply “SCDMH NOTICE OF APPLICABLE PRIVACY LAW” to the attorney issuing the subpoena, notifying the attorney that such information cannot be provided without compliance with HIPAA and Section 44-22-100 of the Code of Laws of South Carolina. Information regarding a Consumer should not be disclosed unless a court order is provided, or the Consumer has signed an Authorization giving authority for such disclosure, or other exception as described in the DMH Privacy Practices Directive.
Sending the reply “SCDMH NOTICE OF APPLICABLE PRIVACY LAW” notice will not excuse the employee from appearing at the date, time and location designated in the subpoena if the subpoena commands the employee's presence. However, the letter will legally preserve the objection to producing the records, as well as place the attorney on notice of the applicable law and need for Authorization or court order.
Court Testimony If an employee is subpoenaed to go to court for a court hearing or other legal proceeding, to provide testimony and/or provide PHI, the applicable employee must go (and take the record if so indicated). Upon taking the stand and being sworn, the employee will usually be asked preliminary questions (name, place of employment, education, etc). When the preliminaries are finished and the questioning regarding the PHI begins, the employee should not provide such information, absent written Authorization, or prior court order, unless the judge takes notice of the applicable law and decides that disclosure is necessary. To get this determination on the court's record of the proceeding, the employee should advise the judge as follows:
Your Honor, paragraph two (2) of South Carolina Code Section 44‑22-100 will not allow me to disclose information about a patient or former of the Department of Mental Health or a person for who commitment has been sought, until the court “directs that disclosure is necessary for the conduct of the proceedings before it and that failure to make the disclosure is contrary to the public interest.”
If the judge then directs that the question be answered and/or documents provided, an employee should do so. If the employee feels that the testimony will do irreparable damage to treatment if released in open court, the employee may ask to confer with the judge in private to explain his or her concern. Such conferences in chambers and any ensuing actions by the court are matters within the judge's sole discretion.
Copy of Record When an original record is taken to court, deposition or other proceeding, a copy of some or all of the record that will likely be needed for evidence should also be taken. Only copies should be surrendered for exhibits or other record to be retained by the court or other entity conducting the proceedings.