Doe v. Board of Social Workers

• Citation: 840 A.2d 744,154 Md. App. 520
• Decision Date: 07 January 2004
• Docket Number: No. 1679,1679
• Parties: Jane DOE, et al. v. MARYLAND BOARD OF SOCIAL WORKERS.
• Court: Court of Special Appeals of Maryland

840 A.2d 744

154 Md. App. 520

Jane DOE, et al. v. MARYLAND BOARD OF SOCIAL WORKERS.

No. 1679, September Term, 2002.

Court of Special Appeals of Maryland.

January 7, 2004.

Timothy F. Maloney (Cary J. Hansel, Brian J. Markovitz, Joseph, Greenwald & Laake, P.A., on brief), Greenbelt, for appellant.

Janet Klein Brown (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Argued before MURPHY, C.J., SALMON and KENNEY, JJ.

MURPHY, C.J.

This appeal involves a subpoena issued by the Maryland Board of Social Worker Examiners (the Board), appellee, for the "complete patient file" of Jane and John Doe, appellants, who are clients of licensed social worker Ms. F.¹ In the Circuit Court for Baltimore City, appellants filed a Motion to Seal the Record and a Motion to Quash the Subpoena. On August 23, 2002, the Honorable Kaye A. Allison entered an Order that granted appellants' Motion to Seal the Record but denied their Motion to Quash the Subpoena. Appellants have appealed the denial of their Motion to Quash, and present the following questions for our review:

I. DID THE CIRCUIT COURT ABUSE ITS DISCRETION BY DENYING APPELLANTS' MOTION TO QUASH THE SUBPOENA?

II. DID THE CIRCUIT COURT ERR WHEN IT HELD THAT THE INTERESTS OF THE STATE IN THE LIMITED DISCLOSURE OF MENTAL HEALTH RECORDS OUTWEIGHED APPELLANTS' CONSTITUTIONAL PRIVACY INTERESTS IN PREVENTING DISCLOSURE?

III. SHOULD THE SUBPOENA BE QUASHED AS A RESULT OF A CONSENT ORDER ENTERED BY THE BOARD AFTER APPELLANTS NOTED THEIR APPEAL?

For the reasons that follow, we answer "no" to each question and therefore affirm the judgment of the circuit court.

Background

The Social Worker Board received a complaint that accused Ms. F., appellants' former social worker, of failing to report that Mr. Doe had sexually abused a minor. The complaint included newspaper articles about Mr. Doe's June 2001 convictions of child abuse and third degree sex offenses involving his granddaughter. According to the articles, Ms. F., who had been counseling the appellants, did not report Mr. Doe's abuse to the authorities.² The Maryland Social Workers Act (Social Worker Act)³ provides that a social worker may be disciplined for failure to report suspected child abuse.⁴ Pursuant to its statutory authority,⁵ the Board initiated an investigation of the complaint and, on April 25, 2002, subpoenaed Ms. F.'s complete patient files for Mr. and Mrs. Doe for the year 1998. Appellants subsequently moved to quash the subpoena and to seal the record. Judge Allison ultimately (1) granted appellants' Motion to Seal the Record, but (2) denied appellants' Motion to Quash the Subpoena.⁶

Discussion

I

Appellants argue that Judge Allison abused her discretion by denying their Motion to Quash.⁷ This assertion presents three separate questions, the first of which pertains to the status of the records, i.e. whether the records sought by the Subpoena contain information that is confidential, privileged, or both. The second question is whether the Board has the right to subpoena mental health records that are confidential under the Confidentiality of Medical Records Act (Confidentiality Act).⁸ The third question is whether the Board is authorized to subpoena mental health records that are privileged under the statutorily created social worker-client privilege.⁹ We answer "yes" to all three questions.

Status of Appellants' "Patient File"

There is a difference between a "confidential" medical record and a "privileged" communication. Shady Grove Psychiatric Group v. State, 128 Md.App. 163, 178-79, 736 A.2d 1168 (1999). Information can be confidential and, at the same time, non-privileged. Id. 128 Md.App. at 179, 736 A.2d 1168. "Privilege is the legal protection given to certain communications and relationships, i.e., attorney-client privilege, doctor-patient privilege, and marital privilege. Confidential is a term used to describe a type of communication or relationship." B.F.G. Employees Credit Union, Inc. v. Kopco & Co., 2002 Ohio 2202. Privilege statutes must be narrowly construed. Reynolds v. State, 98 Md.App. 348, 368, 633 A.2d 455 (1993).

All mental health records are made confidential by § 4-307 of the Confidentiality Act. Reynolds, 98 Md.App. at 365,633 A.2d 455. Appellee subpoenaed patient files that contained information which falls within the category of "transmission[s]" that the legislature intended to protect. The records are therefore confidential and—unless disclosure is required by another applicable statute or constitutional provision—shielded from disclosure by the Confidentiality Act, which ensures that "any oral, written, or other transmission in any form or medium" be kept confidential if it "is entered in the record of a patient or recipient," or "identifies or can readily be associated with the identity of a patient or recipient," and "relates to the health care of the patient or recipient." HG §§ 4-302(a) and 4-301(g)(1). "The [Confidentiality] Act makes the medical record and even the acknowledgment of a medical record confidential." Shady Grove, 128 Md.App. at 179,736 A.2d 1168.

The social worker-client privilege protects "communications made while the client was receiving counseling or any information that by its nature would show that such counseling occurred." C.J. § 9-121(b). "Records of statements made by the patient during group therapy sessions, records of statements made by the patient to other patients during a hospital stay, and records of medication prescribed for the patient are not privileged under C.J. § 9-109." Reynolds, 98 Md.App. at 368, 633 A.2d 455; Dr. K. v. State Board of Physician Quality Assurance, 98 Md.App. 103, 116, 632 A.2d 453 (1993), cert. denied, 334 Md. 18, 637 A.2d 1191, cert. denied, 513 U.S. 817, 115 S.Ct. 75, 130 L.Ed.2d 29 (1994). Information that only "divulges the identity of ... patients and their appointment history" but "does not relate to diagnosis and treatment of mental or emotional disorder[s] ... is not protected by the patient-psychiatrist privilege." Shady Grove, 128 Md.App. at 179, 736 A.2d 1168.

Unlike the records subpoenaed in Shady Grove, the records in the case at bar relate to the treatment and diagnosis of Mr. and Mrs. Doe. Thus, for the purposes of this appeal, we consider the information contained in those records to be both confidential and privileged.

The Board's Subpoena Power as a "Medical Review Committee"

HO § 19-102 provides that "[t]he General Assembly finds that the profession of social work profoundly affects the lives, health, safety, and welfare of the people of this State" and further that the Social Worker Act was enacted

"to protect the public by:

(1) Setting minimum qualification, education, training, and experience standards for the licensing of individuals to practice social work; and

(2) Promoting and maintaining high professional standards for the practice of social work...."

HO § 1-401(b)(1) defines a "Medical review committee" as

"A regulatory board or agency established by State or federal law to license, certify, or discipline any provider of health care...."

HO § 1-401(c) provides that a "Medical review committee" is obligated to

(1) [evaluate] and [seek] to improve the quality of health care provided by providers of health care;

(2) [evaluate] the need for and the level of performance of health care provided by providers of health care;

(3) [evaluate] the qualifications, competence, and performance of providers of health care; or

(4) [evaluate] and [act] on matters that relate to the discipline of any provider of health care.

In Maryland, a social worker is a "health care provider." HG § 4-301(h)(1) defines "health care provider" as "[a] person licensed, certified, or otherwise authorized under the Health Occupations Article...." HO § 19-301(a)(1) requires that an individual be "[l]icensed by the [Board of Social Work Examiners] before the individual may practice social work in this State while representing oneself as a social worker...."

Because they are health care providers, social workers have a duty to comply with the requirements of HG § 4-306(b)(4), which provides:

"(b) A health care provider shall disclose a medical record without the authorization of a person in interest:

* * *

(4) Notwithstanding any privilege in law, as needed, to a medical review committee as defined in § 1-401 of the Health Occupations Article...."

From our review of the applicable statutes, we are persuaded that appellants do not have a statutory right to an order quashing the subpoena at issue.

The Power to Subpoena "Confidential" Medical Records

The Confidentiality Act requires a health care provider "to keep the medical record of a patient or recipient confidential" and to disclose the medical record only as provided by the Act or as otherwise provided by law. HG § 4-302. Section 4-307(b) of HG states: "The disclosure of a medical record developed in connection with the provision of mental health services shall be governed by the provisions of this section in addition to the other provisions of [the Confidentiality Act]." The Confidentiality Act also compels a health care professional, including a social worker, to disclose mental health records to a licensing board pursuant to the disciplinary investigation of a social worker. HG § 4-306(b)(2) states:

(b) Permitted disclosures. A health care provider shall disclose a medical record without the authorization of a person in interest:

(2) Subject to the additional limitation for a medical record developed primarily in connection with the provision of mental health services in § 4-307 of this subtitle, to health professional licensing and disciplinary boards, in accordance with a subpoena for medical records for the sole purpose of an investigation regarding:

(i) Licensure, certification, or discipline of a health professional....

More specifically, HG § 4-307(k)(1)(vi)(1) states:

A health care provider shall disclose a medical record without the...