                                         The Attorney            General of Texas
                                                       December 31, 1982
MARK WHITE
Attorney General

                                        Honorable Lloyd Doggett, Chairman     Opinion No. MW-569
Supreme      Court Building             Subcommittee on Consumer Affairs
P. 0. Box 12546
Austin. TX. 76711. 2548
                                        Texas State Senate                    Re:   Standards governing con-
512/475-2501                            P. 0. Box 12068                       fidentiality of communications
T&Y      9101674-1367                   Austin, Texas   78711                 between   patients   and  non-
Telecopier     51214750266                                                    physician professionals in the
                                                                              mental health field
1607 Main St., Suite 1400
Dallas, TX. 75201-4709                  Dear Senator Doggett:
2141742.8944
                                             You have requested our opinion on the relationship between
                                        article 5561h, V.T.C.S., and section 5.08 of article 4495b, V.T.C.S..
4624 Alberta       Ave., Suite    160
El Paso, TX.       79905.2793
                                        the Medical Practice Act. Article 5561h, V.T.C.S., enacted in 1979,
915/533-3464                            provides for the confidentiality of information communicated by a
                                        client to a professional consulted in connection with a mental or
                                        emotional condition or disorder. Acts 1979, 66th Leg., ch. 239. at
1220 Dallas Ave., Suite          202
                                        512.   A "professional" includes licensed physicians and persons
Houston,     TX. 77002.6966
713/650-0666
                                        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 client so to be. V.T.C.S.
606 Broadway.        Suite 312          art. 5561h, §I. Section 5.08 of article 4495b. enacted in 1981,
Lubbock,     TX.    79401-3479          governs the confidentiality of communications between a physician and
6061747.5236
                                        patient. Acts 1981, 67th Leg., 1st C.S., ch. 1, at 1. Both statutes
                                        expressly apply to licensed physicians. In addition, the operative
4309 N. Tenth, Suite B                  provision of section 5.08 of the Medical Practice Act reads as
McAlten,     TX. 76501-1665             follows:
5121662-4547

                                                    (b) Records of     the   identity, diagnosis,
200 Main Plaza. Suite 400                        evaluation, or treatment of a patient by a
San Antonio,  TX. 76205-2797                     physician that are created or maintained by a
5121225-4191                                     physician are confidential and privileged and may
                                                 not be disclosed except as provided in this
An Equal      Opportunity/
                                                 section. (Emphasis added).
Affirmative     Action     Employer
                                        Since section 5.08 applies to records maintained by a physician as
                                        well as those created by him, it could apply to records prepared by a
                                        mental health professional working under a physician's supervision.
                                        The confidentiality provision of article 5561h, V.T.C.S., is phrased
                                        in similar terms:




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Honorable Lloyd Doggett - Page 2   (MW-569)




            Records of the   identity, diagnosis, evaluation,
         or treatment of a   patient/client which are created
         or maintained by    a professional are confidential
         and shall not be    disclosed except as provided in
         Section 4 of this   Act.

Sec. 2(b).

     The provisions of section 5.08 track those of article 5561h.
V.T.C.S., in a number of respects. However, the exemptions from the
confidentiality requirement found in each statute are not entirely
consistent. Thus, a physician who sees a patient in connection with a
mental health problem, and mental health professionals working under a
physician's supervision, may be faced with apparently conflicting
duties with respect to the confidentiality of patient records. Your
questions are directed at determining which statute controls in the
event of such conflicts. You ask:

            1. Which standards apply to non-physician
         professionals as defined in article 5561h.
         V.T.C.S., who are supervised by physicians; those
         of section 5.08 of the Medical Practice Act, or
         those of article 5561h, V.T.C.S.?

            2. Which standards apply to non-physician
         professionals as defined in article 5561h.
         V.T.C.S., who are not supervised by physicians;
         those of section 5.08 of the Medical Practice Act,
         or those of article 5561h. V.T.C.S.

     Each statute sets out a number of specific exceptions from its
requirement that patient records be kept confidential. Certain
exceptions appear in both statutes. For example, both statutes permit
disclosure of information to any person who has the written consent of
the patient or his representative. V.T.C.S. arts. 4495b, 65.08(h)(5);
5561h, 54(b)(4). Both statutes permit disclosure of information in
court proceedings related to malpractice or the collection of fees for
services rendered. V.T.C.S. arts. 4495b, 15.08(g)(l), (3); 5561h,
-U(a)(l). (3).

     A major difference exists with respect to the treatment of
cormnunicationsmade in connection with a court-ordered examination.
Article 556111 makes the following exception to the confidentiality
privilege in court proceedings:

             [Wlhen the judge finds that the patient/client
          after having been previously informed that
          communications would not be privileged, has made
          communications to a professional in the course of




                                p. 2096
Honorable Lloyd Doggett - Page 3 (m-569)




          a court-ordered examination relating to the
          patient's/client's mental or emotional condition
          or disorder, providing that such communications
          shall not be privileged only with respect to
          issues involving the patient's/client's mental or
          emotional health. On granting of the order, the
          court, in determining the extent to which any
          disclosure of all or any part of any communication
          is necessary, shall impose appropriate safeguards
          against unauthorized disclosure.

sec. 4(a)(4). Article 4495b, V.T.C.S., makes the following exception
to its confidentiality privilege for court proceedings:

             [Wlhen the disclosure is relevant to an
          involuntary civil commitment or hospitalization
          proceeding under:

             (A) the Texas Mental Health Code (Article
          5547-l et seq., Vernon's Texas Civil Statutes);

             (B) the Mentally Retarded Persons Act of 1977
          (Article 5547-300, Vernon's Texas Civil Statutes);

             (C) Section 9, Chapter 411, Acts of the 53rd
          Legislature, Regular Session, 1953 (Article 5561c,
          Vernon's Texas Civil Statutes);

             (D) Section 2, Chapter 543, Acts of the 61st
          Legislature, Regular Session, 1969       (Article
          5561c-1, Vernon's Texas Civil Statutes).

Sec. 5.08(g)(7).

     The Medical Practice Act allows the disclosure of information in
connection with an involuntary civil commitment or hospitalization
under the enumerated statutes. It does not require that the patient
have been informed prior to the examination that his communications
would not be privileged. Thus, a practitioner subject only to the
Medical Practice Act could testify in the enumerated court proceedings
about information acquired in a court-ordered examination even though
no prior warning had been given. The two statutes are in conflict
with respect to this requirement.

     The Medical Practice Act expressly provides that "[elxceptions to
the confidentiality privilege in this Act are not affected by any
statute enacted before the effective date of this Act." Sec. 5.08(i).
The Medical Practice Act became effective August 5, 1981. Acts 1981,
67th Leg., 1st C.S., ch. 1, at 37. Article 5561h, V.T.C.S., was




                              P. 2097
Honorable Lloyd Doggett - Page 4   (MW-569)




enacted in 1979 and thus is the earlier enacted statute. Acts 1979,
66th Leg., ch. 239, at 512. We believe that the Medical Practice Act
should prevail in the event of conflict between its confidentiality
provisions and the inconsistent provisions of prior statutes.

     We have not overlooked the argument that article 5561h might be
considered to be a specific statute which would prevail over the more
general provisions of the Medical Practice Act. A Texas appellate
court has stated as follows:

          A specific act of legislation will supersede a
          general act where the general act does not, by its
          terms, show any intention to establish a law
          contrary to that contained in the specific act.

 Texas Prudential Insurance Company v. City of Dallas, 282 S.W.2d 723,
 725 (Tex. Cl". App. - Waco 1955), aff'd, 291 S.W.2d 693 (Tex. 1956).
 See also V.T.C.S. art. 5429b-2, §3.06 (Code Construction Act). In
 this case, the Medical Practice Act includes a clear statement of
 legislative intent to depart from prior statutes. The standards of
 section 5.08 of the Medical Practice Act apply to physicians
practicing in the mental health area. These standards will apply to
 records created or maintained by a physician by whomever prepared.
-See Attorney General Opinion MW-381 (1981).
     Your second question concerns the standards applicable to
non-physician professionals as defined in article 5561h who are not
supervised by physicians. Non-physician professionals who are acting
independently of a physician are subject to the standards of article
5561h, V.T.C.S. However, if they prepare records which a physician
will maintain, these records will be subject to the standards
expressed in section 5.08 of article 4495b, V.T.C.S.

                            SUMMARY

            The confidentiality standards of section 5.08
         of article 4495b, V.T.C.S., apply to records
         created or maintained by a physician by whomever
         prepared.    The   confidentiality standards of
         article 5561h, V.T.C.S., apply to non-physician
         professionals as defined in article 5561h who do
         not act under a physician's supervision.




                                        Attorney General of Texas




                              p. 2098
Honorable Lloyd Doggett - Page 5   (MW-569)




JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Martha Allen
Rick Gilpin
Patricia Hinojosa
Jim Moellinger




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