Untitled Texas Attorney General Opinion ( 1988 )

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