Complete Overview of Regulations: 42 CFR Part 2
Court Orders Authorizing Disclosure and Use: Court Orders Authorizing Disclosure and Use of Records

c.) Court Orders Authorizing Disclosure and Use of Records

A court order may authorize disclosure and/or use of patient records for one of three purposes:

• For noncriminal purposes;
• To criminally investigate or prosecute patients; and
• To investigate or prosecute a program or the entity holding the records

1. Who can apply for a court order authorizing disclosure and use of records?

• Disclosure for noncriminal purposes: any person with a legally recognized interest in the disclosure of patient records (other than for criminal investigation or prosecution).171
• Disclosure to criminally investigate or prosecute patients: an entity holding records or any person conducting criminal investigative or prosecutorial activities.172
• Disclosure to investigate or prosecute a program or the entity holding the records: any agency with jurisdiction over a program's or record-holding entity's activities.173

2. What are the requirements for the application for the court order?

The application for the order must use a fictitious name to refer to any patient and may not contain or otherwise disclose any patient identifying information unless:

• The court has ordered the record of the proceeding sealed from public scrutiny;174
• The disclosure is for noncriminal purposes and the patient is the applicant;175 or
• The disclosure is for noncriminal purposes or to investigate or prosecute a program or record-holder and the patient has given a valid written consent for the disclosure.176

3. Is any notice or opportunity to provide evidence required?

Before a court order authorizing disclosure and/or use of patient records is granted, adequate notice of that application must be given to:

• The patient and the record-holder, if disclosure is for noncriminal purposes.177
• The record-holder, if disclosure is to criminally investigate or prosecute a patient and the application is filed by a person performing a law enforcement function.178

Notice must be made in a manner that will not disclose patient identifying information to others. No notice need be provided if the order is authorizing disclosure and/or use of patient records to investigate or prosecute a program or a record holder.179

An opportunity to provide evidence on the statutory and regulatory criteria for the issuance of the court order must be given to:

• The patient and the record-holder, if the disclosure is for noncriminal purposes, either by filing a written response to the application or by appearing in person.180
• The record-holder, if disclosure is to criminally investigate or prosecute a patient, by appearing in person.181
• The record-holder, the program, or any patient whose records are to be disclosed in order to seek revocation or amendment of an order authorizing disclosure to investigate or prosecute a program or a record holder.182

In addition, if the disclosure is to criminally investigate or prosecute patients, the record-holder must be given an opportunity to be represented by counsel who is independent of counsel for an applicant who is performing a law enforcement function.183

4. Are there any requirements for the conduct of hearings or the review of evidence?

For disclosures for noncriminal purposes or to criminally investigate or prosecute patients, any oral argument, review of evidence, or hearing on the application for the order must be held in a manner that ensures that patient identifying information is not disclosed to anyone other than a party to the proceeding, the patient, or the entity holding the record.184 This requirement does not apply if the disclosure is for noncriminal purposes and the patient requests an open hearing in a manner that meets the requirements for written consent.185 In either case, the judge may examine the patient records referred to in the application.186

5. What are the criteria for the entry of an order?

For disclosures for any purpose, the court must find that the following criteria exist:

• Other ways of obtaining the information are unavailable or would be ineffective;187 and
• The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship, and the treatment services.188

In addition, for disclosures to criminally investigate or prosecute patients, the court must also find that:

• The crime involved is extremely serious (e.g., a crime that causes or directly threatens loss of life or serious bodily injury);189
• There is a reasonable likelihood that the records will disclose information of substantial value in the investigation or prosecution;190
• If the applicant for the order is a person performing a law enforcement function, the record-holder was given the opportunity to be represented by independent counsel;191 and
• If the applicant for the order is a person performing a law enforcement function and the record-holder is a government entity, the record-holder was actually represented by independent counsel.192

6. What must the content of the order include?

An order authorizing a disclosure or use of patient records for any purpose must:

• Limit disclosure to those parts of the patient's record that are essential to fulfill the objective of the order.193
• Limit disclosure to those persons whose need for information is the basis for the order.194

Orders authorizing disclosure for noncriminal purposes or to investigate or prosecute a program or a record holder must also include any measures necessary to limit disclosure for the protection of the patient, the physician-patient relationship, or the treatment services.195 Orders authorizing disclosure to criminally investigate or prosecute patients must also:

• Limit the use of records by the law enforcement and prosecutorial officials who are responsible for, or are conducting, the investigation or prosecution to the investigation and prosecution of extremely serious crime or suspected crime specified in the application;196 and
• Include other measures necessary to limit disclosure and use to the fulfillment of only that which the court finds to be in the public’s interest and need.197

7. Other Limitations

An order authorizing disclosure and use of records to investigate or prosecute a program or the person holding the records must require the deletion of patient identifying information from any documents made available to the public.198 No information obtained in accordance with such an order may be used to conduct any investigation or prosecution of a patient or be used as the basis for an application for an order authorizing disclosure and use of records to criminally investigate or prosecute patients.199