Regulation of Medicine

article

Responding to Guardian Ad Litem Medical Record Requests

Executive Summary 

A guardian ad litem has the authority to request their wards’ medical records. Accordingly, it is important that healthcare organizations understand how to appropriately respond to such a request and ultimately avoid a HIPAA violation. 

Recommended Actions 
  • Ensure that your practice has a policy for flagging and responding to medical record requests from a guardian ad litem. 
  • Implement a checklist to use when verifying whether a guardian ad litem medical record request is valid. 
  • Ensure that all staff members are appropriately trained regarding their responsibilities for responding to a guardian ad litem medical record request. 

Healthcare organizations and providers will at times receive requests for their patient’s medical records from a guardian ad litem (GAL). Both HIPAA and state privacy laws allow healthcare providers to release and discuss protected health information (PHI) with a GAL.   

A GAL is a court-appointed independent and objective guardian who participates on behalf of and watches over someone (the ward) during a case. Typically, the court will appoint a GAL because the ward is a minor or is legally incompetent and has an unfavorable family or caretaker situation.   

To facilitate their duties, the GAL is granted the power to examine, cross-examine and subpoena witnesses. The GAL can also access confidential information, including medical records of the ward as well as the provider’s opinion regarding what is the best interest of the ward.  

Medical records request from a GAL will typically include notification that they have been appointed to serve as guardian ad litem for the named individual (your patient). That request should include a copy of the “Order Appointing Guardian ad Litem” from the court.  An organization should ensure that they have that document before fulfilling the medical record request. The “Order Appointing Guardian ad Litem” from the court must include the names of the ward as well as the GAL and be signed by a judge. Additionally, a provider may choose to contact the court listed on the order to further ensure that this individual has been appointed the GAL in the pending case.  

It is important to understand that a request from a guardian ad litem for records is not adversarial and thus you do not need to consult a lawyer when receiving such a request. You are not held responsible for the GAL’s process or performance of duties. A provider may disclose medical records to a GAL without fear of a privacy breach.  

Finally, the GAL may request an interview or ask to have a meeting with you to discuss the patient’s treatment and your opinions. During this discussion, you may provide the GAL your medical opinion and offer advice for the best course of action for the patient. It is appropriate to provide your honest opinion as to what you believe to be in the best interest for your patient. The GAL may use this information along with other findings to prepare a written report that is presented at court.  

Family members may ask the provider what information the GAL sought. However, the provider is not bound to share this information. If a family member asks the provider about records the GAL has requested or discussions with the GAL, the provider should refrain from disclosing anything. The provider should not share any of this information as it is confidential between the GAL and the provider. 

Finally, if a provider has a conversation with the GAL about the patient and their best interests, the provider should not document that conversation or any recommendations made in the patient’s medical record. The provider may take note that this discussion took place, and that the provider shared their medical opinion and recommendations with the GAL, but should keep the note general and refrain from including any details about the conversation. 

Lessons Learned 
  • Ensure that your practice is transmitting the requested patient records to the GAL in a HIPAA-compliant manner.  
  • If your practice is unsure about a specific medical request from a GAL, consider contacting the court before fulfilling the request to ensure that the identified person was appointed the GAL.  
  • Be honest when speaking with the GAL about the best course of action for the patient. 
Potential Damages 

If a healthcare organization inappropriately discloses a patient’s medical records, it could face a HIPAA violation and the associated fines and financial penalties. However, the frequency of HIPAA violations associated with a GAL request for medical records is relatively low.  

Quiz 

Question 1: If the patient’s family member asks a provider about medical records provided to a guardian ad litem, the physician should inform them. 

Question 2: A healthcare practice should have a copy of the court order appointing the guardian ad litem. This order must be signed by a judge.  

Question 3: If a guardian ad litem requests an interview with a provider, the physician should avoid talking about the patient as much as possible. 

Answers 

Question 1: False. If a family member asks a provider about medical records the guardian ad litem has requested or discussions with the GAL, the physician should refrain from disclosing anything. This information is confidential between the GAL and the provider.  

Question 2: True. Before fulfilling a medical record request, ensure that the “Order Appointing Guardian ad Litem” is signed by a judge and includes the name of the ward and the GAL. 

Question 3: False. The GAL may request an interview or ask to have a meeting with a provider to discuss the patient’s treatment and your opinions. During this discussion, the physician may provide a medical opinion and offer advice for the best course of action for the patient. It is appropriate for a provider to offer an honest opinion about what they believe to be in the best interest of the patient.  

11/22

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Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.