Regulation of Medicine

Article

Responding to Guardian Ad Litem Medical Record Requests

By:

August 19, 2020

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 is appointed to participate on behalf of and watch after someone (the “ward”) during a case. The court will appoint a GAL to watch after the ward when the ward cannot take care of themselves, typically 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, subpoena witnesses, and access confidential information, which may include, but is not limited to, 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 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 what records the GAL has requested or what the GAL discussed with the provider, 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 what the best interests are for the patient, 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.

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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.