Obtaining medical records for mental health evaluations

Obtaining medical records for mental health evaluations

CRIMINAL LAWUPDATE

Obtaining medical records for mental health evaluations

By David L. Raybin

Mental health evaluations are critical in determining such issues as insanity, diminished capacity, competency to stand trial, and sentencing mitigation. Too frequently we send our clients off for an evaluation without a lick of documentation beyond the warrants or the indictment.

A psychological evaluation certainly must consider what the defendant tells the doctor. However, the defendant may not be aware of his or her problems and thus fail to identify relevant facts or sources of information. It is up to the attorney to provide historical information to the doctor. Typically this can begin with a good social history that considers mental health problems of family members.1

The defendant’s own medical records are critical to the mental health evaluation process. The defendant’s prior mental health treatment, as well as subsequent evaluations, are relevant and may be admissible at the trial or hearing. Even though they may constitute hearsay, medical records may form the basis of expert opinion.2

In most instances attorneys simply prepare a release for the client to execute; it is then sent off to the hospital or other healthcare provider.3 Unfortunately, this is not always an accurate method of acquiring prior medical records. Experience dictates that mental health records are seldom kept appropriately and that one does not always receive everything on the first pass.

A recent case in Nashville demonstrated the tragedy of what was believed to be an appropriate request for documents. The attorney interviewed the client and then sent out releases. The attorney was informed by one responding hospital that the individual had never been there. Several other facilities sent in only partial records. As a result the attorney received less than 20 pages of documents from multiple sources.

Only when a second attorney requested the identical documents at a later time was it discovered that the response to the initial request was inadequate. The second attorney received hundreds of pages after a more diligent search.

While some mental health files are frequently kept in a central location, treating doctors frequently keep their personal notes in their office and do not “merge” the files until some later time. Files are often kept in as many as three different locations. This has resulted in numerous inadequate record responses.

The solution is that you should make personal contact with the custodian and, in more critical cases, the doctor or his or her personal secretary. Another way of ensuring accurate records is to compare the records that you do receive with the billing documents. An absence of documents for a billing event is a good clue to missing records.

Finally, one set of records will almost always lead to disclosure of additional records. A mental health evaluation in a criminal case is like an onion. The bottom layers are not revealed until you first peel off the top.

The attorney can acquire all the records without fear that they can be used against the client if a mental health defense is abandoned.4 If the mental health issue is litigated, the mental health professional will have to disclose the underlying data.5 This is usually not a problem and should only enhance the expert’s opinion.

1. See Hagan v. State, 64 Tenn. 615 (1875)(“If medical science has determined any one question more clearly than another, it is that insanity is hereditary.”).

2. Rule 703, Tennessee Rules of Evidence.

3. While a medical release is almost always sufficient for “normal” health records, many mental health facilities have their own “special” release document. For particularly resistant custodians a pretrial subpoena pursuant to Rule 17(c), Tenn.R.Crim.P. often works wonders. There is a limit to fees that can be charged for providing medical records. Tenn. Code Ann. 63-2-102.

4. State v. Vilvarajah, 735 S.W.2d 837 (Tenn. Crim. App. 1987).

5. See State v. Nichols, 877 S.W.2d 722 (Tenn. 1994).

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David L. Raybin is a partner with Raybin & Weissman, P.C. in Nashville where he concentrates in criminal trials and appeals. Raybin is the author of Tennessee Criminal Practice and Procedure (West 1984). He is also a member of the Tennessee Supreme Court Advisory Commission on Rules of Procedure. E-mail him at DRasybin@aol.com

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