Attorney General Opinion No.

The Honorable Greg Packer State Representative, 51st District State Capitol, Room 181-W Topeka, Kansas 66612-1504

Dear Representative Packer:

As representative for the 51st district, you request our opinion on whether identity can be kept confidential for governing board members of community mental health centers who are consumers of mental health services, or family members of mentally ill persons.

Pursuant to K.S.A. 19-4001, counties may establish individual or multi-county "community mental health centers, and/or community facility for the mentally retarded, which shall be organized, operated, and financed according to the provisions of this act." K.S.A. 1993 Supp.19-4002 provides:

"(a)(1). . . . The governing board shall be composed of not less than seven members. The members of such governing board shall be appointed by and shall serve at the pleasure of the board of county commissioners of the county.

. . . .

"(b) Membership of each governing board, as nearly as possible, shall be representative of public health, medical profession, the judiciary, public welfare, hospitals, mental health organizations and mental retardation organizations, as well as education, rehabilitation, labor, business, civic groups and the general public, and, in each case of a governing board of a mental health center the membership of the governing board shall include consumers of mental health services or representatives of mental health consumer groups and shall include family members of mentally ill persons. . . ."

The executive director of the Association of Community Mental Health Centers of Kansas, Inc. states in a letter to this office dated February 24, 1994 that "some of these consumer/family representatives have no objection to having their status on these boards revealed to the public; others have major objections to being exposed in such manner." The statutes regarding community mental health centers are silent on the issue of confidentiality of identity of governing board members, as he correctly points out. If the legislature intended to keep the identity of certain members of the governing board confidential, it could have easily included such a provision when subsection (b) was amended in 1990 to add the language regarding those members who represent consumers and family members. L. 1990, ch. 92, sec. 13.

The following statutes may have some relevance to the issue of confidentiality: K.S.A. 1993 Supp. 59-2931(a) as part of the treatment act for mentally ill persons provides that "[t]he district court records, treatment records or medical records of any patient or former patient that are in the possession of any district court or treatment facility shall be privileged and shall not be disclosed except as otherwise provided in this act. . . ."; physician-patient privilege is stated in K.S.A. 1993 Supp. 60-427; and psychologist-client privilege is found in K.S.A. 74-5323. Further, K.S.A. 65-5602 provides:

"(a) A patient of a treatment facility has a privilege to prevent treatment personnel or ancillary personnel from disclosing that the patient has been or is currently receiving treatment or from disclosing any confidential communications made for the purposes of diagnosis or treatment of the patient's mental, alcoholic, drug dependency or emotional condition. The privilege extends to individual, family or group therapy under the direction of the treatment personnel and include members of the patient's family. The privilege may be claimed by the patient, by the patient's guardian or conservator or by the personal representative of a deceased patient.

. . . .

"(b) Confidential communications shall extend to those persons present to further the interests of the patient in the consultation, examination or interview; ancillary personnel; persons who are participating in the diagnosis and treatment under the direction of the treatment personnel, including members of the patient's family; and any other persons who the patient reasonably believes needs the communication to assist in the patient's diagnosis or treatment."

The above act is to be "interpreted to encourage treatment in a confidential setting and the rules of discovery shall not take precedence over the provisions of this act." K.S.A. 65-5604. However, when the governing board of a community mental health center is performing government functions such as formulating policies, deciding on the expenditure of moneys, or reviewing services, as authorized under the act, those members are not dealing with any confidential communications involving themselves as individual patients and family members. Therefore, we do not believe that K.S.A. 65-5602 is applicable to the governing board members to keep their identities confidential.

Furthermore, there exist strong public policy reasons why the identity of the governing board members should be disclosed to the public. Duties of the governing board include "control over the expenditures of all moneys," "formulating and establishing policies for the operation," and "annual reviewing, evaluating and reporting of services provided." K.S.A. 19-4003. The board of county commissioners in each participating county is authorized to levy an annual tax for mental health services. K.S.A. 19-4004.

We do not believe that the governing board members can be accountable for their decisions on the operation of the mental health centers, and expending the tax money, without disclosing their identities. This is an appointed position by the county commissioners, if the individuals do not wish to be identified as members of the board in representing the interests of consumers and patients, they have a choice to decline the appointment.

In conclusion, members of the governing board of community mental health centers who are consumers of mental health services or representatives of mental health consumer groups and family members of mentally ill persons may not keep their identities confidential in their official function as governing board members.

Very truly yours,

ROBERT T. STEPHAN Attorney General of Kansas

Nobuko K. Folmsbee Assistant Attorney General

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