Doe v. Maryland Board of Social Workers

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? ⁵²⁷ 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 56*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 dis ⁵²⁸ cretion by denying their Motion to Quash. 7 This assertion presents three separate questions, the first of which pertains to the status of the records, ie. 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). ⁵²⁹ 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^]” 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)(l). “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 disorders] ... 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 ⁵³⁰ consider the information contained in those records to be both confidential and privileged. The Board’s Subpoena Power as a “Medical Review Committee” [¶] § 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----” [¶] § l-401(b)(l) 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.... ” [¶] § 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)(l) defines “health care provider” as “[a] person licensed, certified, or otherwise authorized under the Health Occupations Article____” [¶] § 19-301(a)(l) 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.... ” ⁵³¹ 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: ⁵³² (i) Licensure, certification, or discipline of a health professional---- More specifically, HG § 4-307(k)(l)(vi)(l) states: A health care provider shall disclose a medical record without the authorization of a person in interest: In accordance with a subpoena for medical records on specific recipients ... [t]o health professional licensing and disciplinary boards for the sole purpose of an investigation regarding licensure, certification, or discipline of a health professional....

(Emphasis added). It is evident that the legislature intended to provide the Board with authority to subpoena confidential patient records. In Shady Grove, supra, as a result of a “hate crime” that occurred near the office of a mental health professional group, the State issued a subpoena for information that included names, addresses, dates of birth, phone numbers, and appointment histories of patients who had appointments around the time of the crime. 10 Applying HG §§ 4-306(b)(7) and 4-307(c) of the Confidentiality Act, 11 we granted Shady Grove’s Motion to Quash the Subpoena at issue on the ground that the State had failed to comply with § 4-306(b)(7), which requires written procedures for protecting the confidentiality of the record. Shady Grove, 128 Md.App. at 179 , 736 A.2d 1168 . ⁵³³ Appellants argue that Shady Grove, supra, supports their position that the circuit court erred in denying their motion to quash the subpoena for the records at issue.

Shady Grove is, however, inapplicable to the subpoena at issue here. Although the written procedures requirement applies to subpoenas issued pursuant to criminal investigations, there is no such requirement for subpoenas issued by a health care licensing/disciplinary board. HG §§ 4 — 306(b)(2) and 4-307(k)(l)(vi)(l). The Power to Subpoena Records Protected by the Social Worker — Client Privilege Section 9-121 (b) of the Courts and Judicial Proceedings Article, titled Communications between licensed social worker and client, states: Unless otherwise provided, in all judicial or administrative proceedings, a client has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications made while the client was receiving counseling or any information that by its nature would show that such counseling occurred.

(Emphasis added). In light of the language “unless otherwise provided,” § 9-121 (b) cannot be interpreted without reference to related statutes that are also relevant to the scope of the social worker-client privilege. Section 5-704(a)(l) of the Family Law Article, in pertinent part, provides: Notwithstanding any other provision of law, including any law on privileged communications, each health practitioner, police officer, or educator or human service worker, acting in a professional capacity, who has reason to believe that a child has been subjected to: (i) abuse, shall notify the local department or the appropriate law enforcement agency; or (ii) neglect, shall notify the local department;.... ⁵³⁴ md. code (1999), fam. law § 5-704(a)(l) (emphasis added). 12 Appellants argue that the testimonial privilege between social worker and client abrogates and supercedes the health professional’s statutory duty to provide a licensing/disciplinary board with patients’ mental health records in response to a subpoena issued by that board in the course of a disciplinary investigation. According to appellants, C.J. § 9-121(b) creates an absolute privilege that trumps the Board’s subpoena power.

We disagree. The Maryland General Assembly has authorized the Social Worker Board to investigate complaints of possible violations of the Social Worker Act, which contains an extensive list of violations for which a social worker can be disciplined. [¶] § 19-311. In this case, the Board received a complaint that a licensed social worker, Ms. F., had reason to believe that a child had been subjected to abuse and failed to notify the appropriate agency. Such an omission would constitute a violation of [¶] § 19-311(15), which states: [T]he Board may deny a license to any applicant, fine a licensee, reprimand a licensee, place any licensee on probation, or suspend or revoke a license if the applicant or licensee: (15) Knowingly fails to report suspected child abuse in violation of § 5-704 of the Family Law Article.

Resolving the Conflict between the Board’s Statutory Subpoena Power and Appellants’ Statutory Protections Against Disclosure The legislature has given the Board the authority to hold hearings and issue subpoenas: ⁵³⁵ “Subpoenas and oaths. — Over the signature of an officer or the administrator of the Board, the Board may issue subpoenas and administer oaths in connection with any investigation under this title and any hearings or proceedings before it.” HO § 19—312(c). “It is well settled that when two statutes, one general and one specific, are found to conflict, the specific statute will be regarded as an exception to the general statute.” Farmers & Merchants National Bank v. Schlossberg, 306 Md. 48, 63 , 507 A.2d 172 (1986) (citations omitted). The Confidentiality Act establishes the confidentiality of medical records. HG § 4-302. While C.J. § 9-121 establishes the social worker-client privilege, the Social Worker Act provides the Board with subpoena power over the records of licensed social workers when investigating a violation of that Act, HO § 19-312(c).

Under HG § 4 — 307(k)(1)(vi)(1) of the Confidentiality Act, a social worker must comply with a records subpoena issued by the Board whether or not the social worker’s client objects to the disclosure of the client’s records. As HO § 19-812(c) and HG § 4 — 307(k)(1)(vi)(1) are more specific, we therefore conclude that, (1) the Legislature intended that social worker-client records be confidential and privileged under the Confidentiality Act and C.J. § 9-121, but (2) the Legislature never intended that the client of a social worker whose records have been subpoenaed by the Board would be entitled to rely upon either the Confidentiality Act or C.J. § 9-121 as a basis for prohibiting the Board from obtaining the client’s records. II In support of their constitutional challenge, appellants point out that HG § 4-307(k)(6) “[does] not preclude a ... person in interest from asserting in a motion to quash or a motion for a protective order any constitutional right or other legal authority in opposition to disclosure.” According to appellants, Judge Allison erred when she held that the interest