                            January5, 1988




Honorable  George Pierce                   Opinion     No.   Jf+838
Chairman
Urban Affairs Committee                    Re:    Whether police chief
Texas House of Representatives             may see results of psycho-
P. 0. Box 2910                             logical     evaluation       of
Austin, Texas    78769                     police officer given under
                                           civil service     requirement
                                           (RQ-1260)

Dear    Representative      Pierce:

        You have    submitted    to this   office     a letter   asking:

              Is it a violation   of the   doctor-patient
          privilege   for  a qualified      psychological
          examiner to release information    on a psycho-
          logical evaluation    of a  Police Officer      to
          the Chief of Police if the Officer will       not
          sign a release?

You    provided    the   following    background     information:



              Currently,     civil   service     law    and  the
          collective     bargaining      agreement      in   San
          Antonio allow the Chief of Police to require
          an Officer     to   submit    to   a psychological
          evaluation   or treatment      at any     time to   be
          performed   at the city's expense by a guali-
          fied psychologist,       psychiatrist,      counselor
          or therapist    chosen    by the city.       However,
          it is not clear        if the    Chief is     able  to
          obtain information      regarding    such   treatment




                                p. 4034
Honorable   George   Pierce   - Page   2    (m-838)




        or evaluation    if the    Officer    will    not   sign   a
        re1ease.l

      Article XXX1    is the   provision   of   the   collectively
bargained   agreement   to   which   you   referred.      It  reads
almost exactly as you have described       it.   You have advised
us that the kind of psychological      evaluation     contemplated
by this    agreement   is neither    expressly    authorized     nor
expressly   forbidden by chapter 143 of the Local Government
Code.   Acts 1987, 70th     Leg., ch. 149,     51, at 1729.      Our
examination    of this section confirms this.

      Section 5.08   of the      Medical Practice           Act,       article
449513, V.T.C.S.,  provides     in relevant part:

            (b) Records of    the identity,     diagnosis,
        evaluation    or treatment   of   a patient by     a
        physician   ;hat are created or maintained       bv
        a ohvsician   are confidential    and   privileged
        and may not be disclosed     except as    provided
        in this section.

            . . . .

            (h) Rxceotions   to the    nrivileae   of   con-
        fidentialitv.   in other than court or        admin-
        istrative vroceedinas,      allowing     disclosure
        of confidential    information   by a physician,
        exist onlv to the followinq:

                (1) governmental   agencies   if the   dis-
            closures are    required or     authorized   by
            law;

                (2) medical or law enforcement        person-
            nel   if    the   physician    determines     that
            there    is   a    probability     of    imminent
            physical    injury to    the patient,   to    him-
            self, or     to others,     or  if there     is   a




    1. We understand     that   you    are concerned           about   the
implications   of an officer's    failure voluntarily           to sign a
release.    We therefore  do   not reach the issue             of whether
the city could, as     a condition   of employment,            reauire an
officer to sign such a release.




                                  p. 4035
Honorable   George          Pierce   - Page   3    (JM-838)




            probability    of            immediate    mental            or
            emotional   injury          to the patient:

            .   .   .   .

                (5) any verson  who   bears   a written
            consent of   the oatient   or other   person
            authorized  to act on the patient's   behalf
            for the release of confidential     informa-
            tion, as   provided by   Subsection  (j)   of
            this section[.]

            .   .   .   .

            (i) Exceptions    to  the    confidentiality
        privilege   in this   Act are   not affected     by
        any statute    enacted   before   the   effective
        date of this Act.

            (j) (1) Consent      for    the    release    of
        confidential    information    must be in writinq
        and   sianed   bv    the   vatient   . . . provided
        that   the   written     consent    specifies    the
        following:

           (A) the information  or medical                   records    to
        be covered by the release:

            (B) the  reasons             or       purposes    for      the
        release; and

           (C) the person to whom the information                       is
        to be released.   (Emphasis added.)

Your question would implicate      section 5.08 if a  licensed
physician  performed   the psychological  evaluation that   you
described.    See V.T.C.S.   art. 4495b, 51.03(11)   (defining
"physician").

      Your  question   may  also   implicate                   article   556111,
V.T.C.S.,  which is similar to section 5.08                    of the   Medical
Practice Act.    Among other things, article                   5561h   provides
that

        [rlecords    of    the    identity,     diagnosis,
        evaluation,     or  treatment    of   a   patient/
        client which are created or maintained        by   a
        professional    are confidential    and shall    npt




                                       p. 4036
Honorable     George   Pierce   - Page   4     (JM-838f




           be disclosed    except   as provided      in Section   4
           of this Act.    . . .

V.T.C.S.     art.    5561h,   §2 (b) .       The   statute   defines   the
relevant     terms   as follows:

               Sec.   1.    (a) 'Professional'      means     any
           person authorized       to practice    medicine     in
           any state or nation, or any person           licensed
           or certified    by the State of       Texas in the
           diagnosis,    evaluation,    or  treatment    of   any
           mental or emotional       condition   or   disorder,
           or   reasonably     believed    by  the      patient/
           client so to be.

               (b) 'Patient/Client'      means any person who
           consults,     or    is  interviewed     by,   a pro-
           fessional   for purposes      of diagnosis,      eval-
           uation,    or    treatment    of   any   mental      or
           emotional   condition      or disorder,     including
           alcoholism    and other drug addiction.

A person performing  the psychological evaluation    described
in your question would   likely be a t'professional"    within
this statute.

      Cracker      Sv v 1. Inc     732   S.W.2d 429 (Tex. App.      -
Beaumont   1987y.writ   Feguest'withdrawn)    , involved an    issue
similar to    this    one.    At the    request   of   a physician
employed by     Synpol, a company employee        was required     to
undergo a urinalysis       to  determine    if he was    under   the
influence   of illegal drugs.     The company and its employees
were subject to a collectively         bargained  agreement    which
provided   that

           [f]or   the    purpose     of     determining
           employee's   physical    condition     and   fitneii
           for performing     his regular     job or    any   to
           which he may be assigned,      during any     period
           of employment,     the   Company may     require     a
           check   examination     by   either    the   Company
           physician   or any    other reputable      physician
           selected and paid by the Company.

732 S.W.Zd at 431.   After the drug test was performed,       and
without the employee's   consent,     the doctor submitted    the
test results to the company.      This prompted  the   following
discussion  by the court:




                                    p. 4037
Honorable   George          Pierce   - Page   5   (m-838)




        It   is    correct,       under     the     collective
        bargaining    agreement,    that    the company      had
        the right     to   have    the    employees     undergo
        certain    physical      examinations     at    certain
        times, but we conclude that this meant              that
        the employees     at   least acquiesced      in   these
        physical    examinations       and   at   least      the
        employees     knew    what     was   going    on     and
        appreciated    the    fact that     they were     being
        examined at the orders         of the company.        We
        think    there    is   a   strain     or  string      of
        evidence   in this case       that Cracker may       not
        have consented,      or realized,     or  appreciated
        that he was being tested for drugs.            . . .

            .   .   .   .

            Cracker   avvarentlv    did   not   aive    anv
        sevarate release     vermittina   the   doctor   to
        release anv    confidential   communication,     or
        anv kind    of information,     to Svnnol.    Inc.,
        concernins   the urinalvsis.    . . .

            We feel   constrained      to   concl,ude that      a
        material   fact    issue was      raised under      this
        unicue record bv      Dr . Hambv's revortina          the
        results of    the urinalvsis        to Sv D 1.      I    .
        Generally    speaking,       a     physicyaz-pati%
        relationship    is, in our state,, considered          to
        be   a confidential        relationship      and      the
        communications    connected       therewith    are    not
        intended to be discussed        with third      parties
        other than    those     actually present        at    the
        time of   the    consultation       or    examination.
        . . . And this privilege        of    confidentiality
        may   be   claimed      by   the     patient     or
        representative     of the patient acting on           th:
        patient's   behalf.     (Emphasis added.)

732 S.W.2d    at   433-34.    The court   went. on    to   discuss
various rules of evidence as       well as section 5.08 of      the
Medical Practice Act.      It concluded  by remanding    the   case
for trial on the issue      of whether the physician      breached
the   patient-physician     privilege   when   he  disclosed     to
Synpol the results of the urinalysis.

      The Svnvol court devoted    much attention   to the   fact
that Cracker did   not validly    consent to    the urine   test
performed  on him.   For our purposes,   however,  the case   is




                                       p. 4038
Honorable     George   Pierce   - Page   6   (JM-838)




most important    because of its discussion      of the fact     that
the physician     disclosed    the test    results    to   Cracker's       -
employer without a release from Cracker.           The plain import
of this portion of      the case is    that employees     enjoy   the
benefit of    the   patient-physician     privilege      created   by
section 5.08 and that a collectively        bargained     agreement,
standing alone, cannot abrogate this privilege.

      It has been suggested      that the real significance         of
Svnvol lies in the fact that Cracker was unaware that             the
test was    being performed     on him    and therefore     did   not
effectively    consent to the test.     The argument    is that     an
individual   may validly waive his section 5.08         protection,
but that Cracker could not       be regarded as having done         so
given his    lack    of  awareness   that   the   test   was    being
administered.      If an employee were to validly consent to a
physical   examination,   it is argued, he should be        regarded
as having effectively     consented    to the disclosure     of   the
test results and, therefore,       as having waived his      section
5.08 privilege.

      A person may waive his section 5.08 protection.               The
statute, however,       specifically    prescribes     the manner     in   -
which this may be done.        There,must    be a written waiver of
the statutory    protection,      and this    release must     contain
certain    specific     information.        V.T.C.S.    art.     4495b,
§5.08(h) (5), (j).     A  written   release    is also  essential     in
cases involving     article 5561h.      V.T.C.S.   art. 5561h, 54(b)
(4).    In view of the      specificity    of these provisions,       we
cannot conclude that       the patient-physician       privilege    may
be impliedly waived in the manner suggested.

      As     noted,   section   5.08   contains         the    following
relevant     exceptions  to the patient-physician         privilege:

               (h) Exceptions      to   the     privilege     of
           confidentiality,      in   other   than    court   or
           administrative      proceedings,     allowing    dis-
           closure of     confidential     information     by   a
           physician,   exist only to the following:

                  (1) governmental     agencies   if   the
              disclosures   are required or authorized  by
              law:

                  (2) medical     or      law     enforcement
              personnel    if the     physician     determines
              that there is     a probability    of    imminent
              physical    injury   to     the   patient,      to




                                   p. 4039
Honorable    George            Pierce   - Page   7    (JM-838)




             himself, or to others,     or if there is  a
             probability    of   immediate    mental   or
             emotional   injury to the patient:

             .    .    .   .

                 (5) any person  who  bears   a written
             consent of the patient    or other    person
             authorized  to act on the patient's   behalf
             for the release of confidential     informa-
             tion, as   provided by  Subsection   (j)   of
             this section[.]

Article    5561h     contains    similar    exceptions.        Sections
4 WI (1) t (2),     (4) - In    certain circumstances,       exception
(h)(2) of section 5.08 and its article 5561h              counterpart,
section 4(b)(2), might        be triggered.       As for    exceptions
(h)(l) of section 5.08 and          4(b)(l) of article 5561h,        the
city of San Antonio is a governmental           agency; accordingly,
if the disclosure       of confidential    information    to the    city
by a physician       were "required     or  authorized   by law,"     it
would not      violate    the patient-physician       privilege.      We
have, however,      found no Utlawllauthorizing      or requiring    the
disclosure     contemplated   by    your question.

      It has been suggested    that article 5154c-1, V.T.C.S.,
pursuant   to  which this    collectively   bargained    agreement
was   made,   impliedly   authorizes     such   disclosure.     The
argument   is that the statutory    patient-physician    privilege
may be abrogated    by a provision   in an agreement    authorized
by article 5154c-1.     We disagree.

        Section       20 of       article     5154c-1    provides   in   relevant
part:

              (a) This      Act     shall     supersede        all
          conflicting    provisions     in previous     statutes
          concerning     this     subject    matter:    to     the
          extent    of     any     conflict      the    previous
          conflicting    statutory      provision     is hereby
          repealed;    and    this   Act shall     preempt     all
          contrary   local ordinances,       executive    orders,
          legislation,     rules,     or regulations      adopted
          by the    state or     by    any of    its   political
          subdivisions     or   agents,     such as,    but    not
          limited    to,    a   personnel     board,    a   civil
          service      commission,        or     a     home-rule
          municipality.




                                            p. 4040
Honorable   George   Pierce   - Page   8    (JM-838)




             (b) Provisions    of   collective      baraaininq
        contracts    made   vursuant    to    this Act     shall
        take vrecedence      over state       or local     civil
        service vrovisions        whenever    the   collective
        baraainina    contract.     bv   aareement      of   the
        parties.    svecificallv      so vrovides.       Other-
        wise, the     civil    service     provisions      shall
        prevail.     Civil service provisions,         however,
        shall    not   be    repealed      or   modified      by
        arbitration      or  judicial      action:     although
        arbitrators    and   courts, where        appropriate,
        may interpret     and/or    enforce civil       service
        provisions.

            (c) Nothina contained      in  this Act      shall
        be   construed     as  revealins     anv     existinq
        benefit nrovided      bv   statute    or   ordinance
        concerning     firefighters'             policemen's
        salaries,    pensions,     or   reZement       plans
        hours of work, conditions.of       work. or      othe;
        emoluments:    this Act shall be cumulative        and
        in addition to the benefits provided          by said
        statutes and ordinances.        (Emphasis added.)

This provision    states   that only certain       state and      local
civil service provisions      may   be superseded    by    provisions
in collectively     bargained     agreements.     Section     5.08   of
article 4495b and article        5561h are not such       provisions.
Absent much more conclusive       evidence that the       legislature
intended this     result,    we cannot    conclude     that    article
5154c-1 authorizes     a collectively     bargained    agreement     to
abrogate   the   physician-patient     privilege    created by      the
foregoing   statutes.2    An example of such a clear statement
of legislative     intent is     section    143.081 of     the    Local
Government   Code, which provides      in part:




    2. We    also    note     that   section     5.08(i)     provides,
"Exceptions   to the     confidentiality     privilege    in   this Act
are   not   affected    by    any   statute     enacted    before   the
effective   date of this Act."       Article     5154c-1 was enacted
in 1973, eight years before the effective             date of section
5.08.   Article 5154c-1, therefore,         cannot be     construed  as
a lllaw" within exception       (h)(l) of section 5.08.




                                  p. 4041
     Honorable   George   Pierce   - Page     9   (J'M-838)




                 (a) If a question arises as to whether           a
P            fire    fighter     or    police      officer       *
             sufficiently   physically    fit to continue      tlz
             person's duties, the fire fighter or          police
             officer shall submit to the [Fire          Fighters'
             and    Police      Officersr      Civil      Service
             Commission]    a   report    from   the     person's
             personal physician.

           In sum,    notwithstanding     a contrary provision        in   a
     collectively   bargained    agreement,    a psychological    examiner
     employed by    the city     of San    Antonio would     violate     the
     patient-physician     privilege   created by section 5.08 of the
     Medical Practice Act       and by article      5561h if, without      a
     signed release from       the police officer,       he disclosed     to
     the   Chief   of   Police     the   results    of   a psychological
     examination   which    he   administered    to    the  officer.      An
     exception   would exist      if the   facts justified      disclosure
     under exception     (h)(2) of section 5.08 of article 449533 or
     subsection   4(b)(2) of article 5561h.

                                   SUMMARY

                 Unless the facts warrant the         application
             of exception     (h)(2) of    section 5.08 of      the
             Medical      Practice     Act,     article     449533,
             V.T.C.S.,    or subsection     4(b)(2) of     article
             556111, V.T.C.S.,      a psychological       examiner
             engaged by     the city    of San    Antonio    would
             violate    the     patient-physician       privilege
             created by section 5.08 and by article 5561h
             if, without a signed release from the police
             officer,     the   physician    disclosed      to the
             Chief     of     Police    the     results     of     a
             psychological     examination   which he     adminis-
             tered to the officer.




                                               L-LJ~
                                                  Very truly yo r ,
                                                        .


                                                  JIM      MATTOX
                                                  Attorney  General   of Texas
r-
     MARY KELLER
     Executive  Assistant    Attorney        General

     JUDGE ZOLLIE STEAKLEY
P    Special Assistant  Attorney        General



                                       p. 4042
Honorable   George   Pierce   - Page   10   (J-f-838)




RICK GILPIN
Chairman,  Opinion    Committee

Prepared by Jon Bible
Assistant Attorney General




                                  p. 4043
