In Re Marriage of Jones

Without the written consent of the patient, the only authority by which Jones may gain access to Dr. Abrams's records concerning Karissa is under Sections 611.0045 (f) and611.004 (a)(4) of the Texas Health and Safety Code.¹ Read together, those sections state that "[t]he content of a confidential record shall be made available to [a parent of a minor patient] who is acting on the patient's behalf."

In analyzing the effect of this provision, the majority opinion states:

The Legislature has therefore made it clear that as between parent and child, the parent is responsible for making decisions relating to the child's welfare. . . . Consequently, we conclude that by requesting that Abrams turn over Karissa's mental health records, Jones was necessarily "acting on behalf" of Karissa as contemplated by section 611.0045(f) of the Code.

In construing a statute, we give effect to all of the words and do not treat any of the language as surplusage, if possible. See,e.g., City of Amarillo v. Martin, 971 S.W.2d 426, 430 (Tex. 1998). Under the majority opinion, a parent requesting mental health records for their minor child is presumed to be acting on the child's behalf. However, had the Legislature intended to give parents such a presumed, automatic, or absolute right to disclosure of their minor children's medical records in subsection (f), there would have been no purpose for including the qualification "who is acting on the patient's behalf." Therefore, to interpret subsection (f) to give parents an absolute right to disclosure would treat that phrase as surplusage and render it meaningless.

By contrast to the majority position, I believe that inclusion of the language "who is acting on the patient's behalf" in subsection (f) reflects a recognition by the Legislature that parents cannot always be presumed to be acting on their child's behalf when seeking access to the child's medical records. Rather, situations can be envisioned in custody disputes and otherwise where disclosure of a child's medical records, particularly their mental health records, will further only the interests of the parent and possibly even be detrimental to the child. Because no showing was made in this case that Jones was acting on Karissa's behalf in seeking access to her medical records, I would reverse the judgment of the trial court and render a take-nothing judgment.

¹ I read Section 153.073 of the Texas Family Code to merely provide that the rights held by a parent as conservator of a child are equivalent to those held by an ordinary parent. Therefore, a conservator parent's rights are subject to the same limitations under applicable law as those of an ordinary parent, including that under Section 611.0045 (f) of the Texas Health Safety Code. Similarly, I read Section 611.0045 (b) of the Health Safety Code to allow a professional to deny access to medical records only to the patient, as alluded to in subsection (a), and not to a person referred to in subsection (f).

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