My husband and I are seeking guardianship of our 31-year-old mentally ill son, who has attempted suicide three times since May 31 by throwing himself in front of cars. He has been in and out of the same behavioral health unit in Kailua, Oahu, several times, and he has been observed by a number of different psychiatrists. He is difficult to diagnose and treat because he is volitionally mute. He is paranoid and delusional and for the most part won't sign HIPAA release forms. The doctors won't pass on information to us because of the HIPAA laws. Our attorney says that we need a letter from a doctor supporting our petition for guardianship. The doctor who is currently seeing him recommends that we pursue guardianship, but refuses to give us the letter our attorney says he needs. The hospital got my son to sign a form to release information to the attorney, and they are telling us to have the attorney use this release to obtain the discharge papers from a previous hospitalization. The hospital says it contains they information the attorney needs for us to get guardianship. The attorney has not seen the records, but says that nothing short of a doctor's letter will serve our needs.Is the attorney correct under federal and/or HI law? Or is it possible that the court will accept the discharge orders as evidence of the need for guardianship?
State/Country relating to question: Hawaii
I think I explained this in my question--please let me know if you need more information.
Unfortunately, if the doctor refuses, the attorney does have an option, since under HIPAA an exception to a doctor releasing information without a signed release is that the attorney can obtain a subpoena to the doctor for the information and call him to testify in court. A doctor can disclose information without a HIPAA release pursuant to a lawful subpoena and in a court. Thus, if the doctor will not provide a letter the attorney would have to subpoena the records from the doctor and subpoena the doctor to testify about your son's condition. It could be that the attorney does not want to add this cost to you or does not want to fight this in court which is why he is telling you that he needs to letter to proceed.I would suggest sitting with another attorney, one who specializes in "elder law" because they are most familiar with these types of guardianship cases and how to obtain the information you need.
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Thank you! The doctor who is currently seeing my son in the hospital behavioral care unit does have a release to give my husband verbal information about my son's condition and treatment. However, since the second day after receiving the release, the doctor has refused to talk to my husband, requesting instead releases to speak with me or my younger son. My mentally-ill son refuses to sign these releases.What can we do to get the doctor to comply with the release?
If the doctor is refusing to comply with the release to give your husband the information, then again court and a subpoena is going to be the only way to force him to do so I am afraid. The court is the only one that can force the doctor to comply.
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