In the Courts: Privacy: Patient Advocate May Access Patient Records without Consent or Authorization

December 23, 2015 | Strategic Insights for Health System


​West Virginia's highest court held that Legal Aid of West Virginia, acting as a patient advocate under contract with the state's Department of Health and Human Resources (DHHR), may have access to patient records and patients residing in the state's two psychiatric hospitals without their consent or authorization, for the purpose of conducting audits to ensure compliance with the state's guarantee of protection of patient rights. A dispute arose when DHHR, without prior notice, after a decade of working with Legal Aid as a patient advocate, began to require Legal Aid to obtain signed releases from each patient or patient's guardian and/or the person with the medical power of attorney before obtaining any information from or about the patient. Legal Aid sought emergency relief. A lower court ordered DHHR to restore Legal Aid's access to patients and patient records. DHHR appealed.

On appeal, the high court found that under contract with DHHR, Legal Aid created an assessment tool for hospital audits so that DHHR could carry out court-ordered compliance reviews. Legal Aid assisted with and investigated individual grievances, conducted abuse and neglect investigations, educated staff and patients...

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