Communication and Confidentiality

1. Communication and Confidentiality The Basics Every GAL Needs to Know Presented by Thom Nolan

2. Communication – What is it? Conveying information to others; requires using a common language that all participants understand. • Written • Verbal • Non-verbal No form of communication should occur without a conscious reflection of what the desired goal of the communication is.

3. Written Communication • Court Reports • Email • Motions and affidavits • Correspondence to collateral professionals

4. Verbal Communication • With the court, i.e. supplementing court reports; oral motions, etc. • With the child • With parties • With collateral professionals

5. Non-Verbal Communication • Body language, facial expressions • Dress • Deportment • Gutteral expressions, sighs, sarcastic laughter, etc.

6. Tindell v. Rogosheske Tindell v. Rogosheske, 428 NW2d 386 (Minn. 1988) • Minnesota Supreme Court affirmed trial court and court of appeals that a guardian ad litem is entitled to absolute immunity from liability for acts within the scope of the guardian’s exercise of statutory responsibilities. • Supreme Court extended protection to guardians as quasi-judicial officers, when the guardian is working within the responsibilities for which the guardian is appointed – advocating for the child’s best interests.

7. Tindell recognized a guardian as an officer of the court, as is an attorney. • A guardian has rights that other parties do not possess and that ordinarily are performed by an attorney. The rules specifically state that exercising these rights by the guardian is not the unauthorized practice of law. • Responsibilities and Rights of the guardian are specifically enumerated in R. GAL. P. 905 and 907, respectively.

8. Responsibilities • (a) conduct an independent investigation to determine the facts relevant to the situation of the child or incompetent adult and the child’s parent, legal custodian, or other household or family member, which must include, unless specifically excluded by the court: • (i) reviewing relevant documents, which in the case of an adoption shall include the adoption study report and the post-placement assessment report, upon order of the court to the extent permitted by Minn. Stat. § 259.53, subd. 3(b) • (ii) meeting with and observing the child in the home setting and considering the child’s or incompetent adult’s wishes, as appropriate; and • (iii) interviewing parents, caregivers, and others relevant to the case;

9. Responsibilities • (b) advocate for the best interests of the child or incompetent adult by participating in appropriate aspects of the case and advocating for appropriate community services when necessary; • (c) maintain the confidentiality of information related to a case, with the exception of sharing information as permitted by law to promote cooperative solutions that are in the best interests of the child or incompetent adult;

10. Responsibilities • (d) monitor the best interests of the child or incompetent adult throughout the judicial proceeding; and • (e) present written reports on the best interests of the child or incompetent adult that include conclusions and recommendations, and the facts upon which they are based.

11. Cooperative Solutions vs. Adversarial Process • Are they mutually exclusive? • How do you maintain confidentiality while attempting to be cooperative in advocating for a child’s best interests? • How do you prevent yourself from being co-opted by colleagues, court personnel, parties and collateral professionals with whom you work on a regular and consistent basis? • How do you maintain your independence as a party?

12. Confidentiality When is something confidential? • Marked by intimacy or a willingness to confide; • Private, secret; • The condition of being concealed or hidden; • Containing information whose unauthorized disclosure could be prejudicial.

13. As a Quasi judicial officer, a guardian ad litem is an officer of the court, as is a lawyer. Minnesota lawyers are bound by a strict code of conduct pertaining to confidentiality. Though obviously not bound by the same code, it may be helpful to look at the language to see how, if at all, a guardian possesses similar responsibilities of confidentiality.

14. Minnesota Rules of Professional Conduct • Rule 1.6 Confidentiality of Information • (a) except when permitted under paragraph (b), a lawyer shall not knowingly reveal information relating to representation of a client. • (b) a lawyer may reveal information relating to representation of a client if: • 1. the client gives informed consent; • 2. the information is not protected by the attorney-client privilege under applicable law, the client has not requested that the information be held inviolate and the lawyer reasonable believes the disclosure would not be embarrassing or likely detrimental to the client;

15. 3. the lawyer treasonably believes the disclosure is impliedly authorized in order to carry out the representation; • 4. the lawyer reasonably believes the disclosure is necessary to prevent the commission of a fraud hat is reasonably certain to result in substantial injury to the financial interests r property of another and in furtherance f which the client has used or is using the lawyer’s services, or to prevent commission of a crime; • 5. the lawyer reasonably believes the disclosure is necessary to rectify the consequences of a client’s criminal or fraudulent act in furtherance of which the lawyer’s services were used; • 6. the lawyer reasonably believes he disclosure is necessary to prevent reasonably certain death r substantial bodily harm; • 7. the lawyer reasonably believes the disclosure is necessary to secure legal advice bout the lawyer’s compliance with these rules;

16. 8. the lawyer reasonably believes that disclosure is necessary to establish a claim or defense on behalf of the lawyer in an actual or potential controversy between the lawyer and the client, to establish a defense civil, criminal or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond in any proceeding to allegations by a client concerning the lawyer’s representation of the client; • 9. the lawyer reasonably believes that disclosure is necessary to comply with other law or a court order; or • 10. the lawyer reasonably believes the disclosure is necessary to inform the Office of Lawyers Professional Responsibility of knowledge of another lawyer’s violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.

17. General Responsibilities of Guardians ad Litem • “Maintain the confidentiality of information related to a case, with the exception of sharing information as permitted by law to promote cooperative solutions that are in the best interests of the child or incompetent adult”. Minn. R. GAL.P. 905.01 (b). What does this mean to you?

18. Relevance to GALs • “maintain the confidentiality of information…except to share…as permitted by law” Federal Law: HIPAA (Health Insurance Portability and Accountability Act) State law vs. Federal Law Generally, the privacy provisions of HIPAA will preempt state law. Some exceptions exist, such as when the state law’s purpose is to provide even greater privacy protections than does federal law; when the state law exists to serve a compelling public health, safety or welfare need.

19. HIPAA Provisions • Standards for Privacy of Individually Identifiable Health Information “HIPAA Privacy Rule” Congress established National Standards and identifiers for providers, electronic health care transactions and the security and privacy of health care data.

20. How Does HIPAA Privacy Work? • Fundamental principle of HIPAA Privacy Rule is to limit and define how a protected individual’s health care information may be used or disclosed. • Who is a protected individual? In essence, anyone who has individually identifiable health information that is held or transmitted by a covered entity. The information can be kept and transmitted in any form – electronic, paper, oral. This is generically considered “protected health information (PHI)”

21. What is a Covered Entity? • Any organization that transmits health care information: • Health plans • Health care clearinghouses • Any health care provider, regardless of size Exceptions: Group health plans of less than 50 participants administered solely by an employer Certain government programs, such as community health centers

22. What is Individually Identifiable Health Information? • Relates to the individual’s past, present or future physical or mental health or condition, • Relates to the provision of health care to the individual • Relates to past, present or future payment for provision of health care to the individual.

23. What Can you Obtain? • Information for the which the individual has signed a written authorization; • Covered entities may disclose protected health information to, amongst others: 1. public health authorities authorized by law to collect or receive such information for preventing or controlling disease, injury or disability and to public health or other authorities authorized to receive reports of child abuse and neglect;

24. 2. in a judicial or administrative proceeding if the request for the information is through an order from a court or administrative tribunal. Such information may also be disclosed in response to a subpoena or other lawful process if certain assurances regarding notice to the individual or a protective order are provided. Does the Guardian ad Litem Appointment order fall within HIPAA’s definition of an order from the court?