S.L. 2013-18 (S 45). Incapacity to Proceed (Criminal Defendants)
Health care providers should be aware of this new law, because it requires the disclosure of protected health information in prescribed circumstances. When a disclosure of protected health information is required by state law, it is permitted by the federal HIPAA Privacy Rule (see 45 CFR 164.512(a)). The portion of the law described in this summary is effective December 1, 2013.
Health care providers should be aware of this new law, because it requires the disclosure of protected health information in prescribed circumstances. When a disclosure of protected health information is required by state law, it is permitted by the federal HIPAA Privacy Rule (see 45 CFR 164.512(a)). The portion of the law described in this summary is effective December 1, 2013.
S.L. 2013-18 amends the laws governing a defendant’s incapacity to proceed in a criminal trial. Under existing law (G.S. 15A-1002), when a defendant’s capacity to proceed is questioned, the court must hold a hearing to determine the defendant’s capacity and may order examinations of the defendant by impartial medical experts. Reports of the examination are admissible at the hearing. This legislation adds a new subdivision (4) to subsection (b) of G.S. 15A-1002, providing that a district or superior court judge who orders an examination shall order the release of relevant confidential information to the examiner, potentially including prior medical and mental health records. The judge must first: (1) provide the defendant with reasonable notice and an opportunity to be heard, and (2) determine the information is relevant and necessary to the hearing and is unavailable from any other source. The new subdivision shall not be construed to relieve the court of its duty to conduct hearings and make findings required by relevant federal law before ordering the release of private medical or mental health information, or records related to substance abuse or HIV status or treatment. (Note: There are federal confidentiality laws that may apply to records related to substance abuse. See 42 CFR Part 2. The main federal medical confidentiality law—the HIPAA Privacy rule—does not impose additional requirements for hearings or findings when a disclosure is made pursuant to a court order. There is a state law in North Carolina that provides for in camera review of HIV and other communicable disease information upon the request of the individual who is the subject of the information. G.S. 130A-143(6).)
The law expressly permits the custodians of records to surrender the records to the court for in camera review if necessary for the court to make required determinations. The records shall be withheld from public inspection and may be examined only as provided by new G.S. 15A-1002(b)(4) or by order of the court.