In many cases, the mental or physical health of the client, or a family member of the client, will be in issue. Whether it be a personal injury case, a family law case involving custody disputes, a commitment proceeding, a guardian/conservatorship proceeding or a criminal action, there are going to be times when matters protected by physician/patient relationship may be subject to disclosure to others. Likewise, there are going to be times when others are going to need access to information subject to doctor patient confidentiality in order to fulfill a request or perform a task that you have requested, e.g. making an application for health insurance or life insurance, applying for employment, filing an personal injury claim, etc. The invasion often involves access to your client’s medical records. Remember, medical records can contain information not only about your client’s physical health, but also information about family relation- ships, sexual behavior, substance abuse, psychotherapy, sleep habits, even your private thoughts and feelings about cer- tain matters.
In these instances, two important ethics principles apply. First, Kansas Supreme Court Rules on Discipline of Attorneys Rule 1.4 imposes obligations on the attorney to discuss the possible disclosure of confidential information in records with the client. Second, once records have been obtained, Kansas Supreme Court Rule on Discipline of Attorneys Rule 1.6 places a duty on counsel to maintain the confiden- tiality of the records to the fullest extent possible.
So, if the objective of your representation may require access to and the disclosure of your clients medical records, it is incumbent upon you to discuss the disclosure fully with the client. The client needs to know what he or she may be getting into. It may be that the client will abandon the venture because he or she does not want information in the records released to anyone. It may be that the client is unsure of what may be in the records and the continued pursuit of the objective you were hired to complete requires the records be obtained and examined before the matter proceeds further. It may be that the client has no objection to the disclo- sure of information to certain persons, but not others. Regardless of the case, you have an obligation to sit down with the client and explain the situation to him or her and gain consent to proceed. This should be documented by letter to the client following the consultation.
