Getting Your Adult Child's Medical Records for a Marchman Act Petition

Usually, a family member cannot simply ask for an adult child’s medical records and receive them. Whether you can get them depends on who holds the record, what it contains, and what permission exists. This page explains the rules for adult child medical records in Florida and how those records can fit into a Marchman Act petition. The Marchman Act is Florida’s law for court-ordered assessment and treatment of people severely impaired by substance abuse, as the Florida DCF Marchman Act page explains.

Why Families Ask for an Adult Child’s Medical Records Before Filing

Families ask for records because a loved one’s drug or alcohol use has become a safety concern. You may want proof of what has happened. You may also want to know whether a doctor has already assessed them.

A Marchman Act petition is a court filing. When a family files one, the judge looks at facts about the person’s substance use and the risk it creates. That is why records come up. A family wants to show the court what has happened and what professionals have found.

The central tension is simple. Your loved one is an adult with privacy rights over health information. Your family has a real need to know what is going on and how to protect them. Florida and federal law try to balance both.

For the full overview, see our Marchman Act guide. This page covers three routes to records, how the federal substance use rules change the picture, and how a court can order records into a case.

What HIPAA Does and Does Not Allow a Family Member to Do

HIPAA does not give a family member an automatic right to a loved one’s records. Being related to them is not enough on its own. HIPAA protects identifiable health information held by health care providers and health plans. Under 45 C.F.R. § 164.508, a covered entity generally may not use or disclose that information without a valid authorization. The exceptions are the ones the rules permit or require.

For an adult, the HIPAA access rules look to legal authority. The question is whether a person has authority under applicable law to make health care decisions for the adult. That question is covered in the next section.

The rules also list specific situations where a provider may share information without a signed authorization. Those situations are set out in the regulation, and the provider applies them. A parent’s request alone does not create one.

Expect the provider to decide what it can share. Expect to be asked for identification and proof of your relationship. Be ready to explain what you need and why. Providers often ask for documents before they release anything.

Personal Representative Status and Written Authorization

Under 45 C.F.R. § 164.502(g)(2), if applicable law gives a person authority to act on behalf of an adult in making decisions related to health care, a covered entity must treat that person as a personal representative for the relevant protected health information. A court-appointed guardian with that health care authority is one example. Under 45 C.F.R. § 164.502(g)(2), if under applicable law a person has authority to act on behalf of an adult or an emancipated minor in making decisions related to health care, a covered entity must treat that person as a personal representative under this subchapter, with respect to protected health information relevant to that personal representation.

Without that authority, the most direct route is a written authorization. Your loved one signs it. The 45 C.F.R. § 164.508 rules say the authorization must be written in plain language. It must name who may disclose the information and who may receive it. It must also state an expiration date or event. The provider must give your loved one a copy of the signed form.

Ask the provider for its own authorization form. Providers use their own forms, and some require particular wording. Ask before you assume a general form will work.

If your loved one is willing to sign, make that a calm conversation. Don’t make signing a condition of your support. Pressure can escalate a crisis and make cooperation less likely.

Substance Use Treatment Records and 42 CFR Part 2

Records from federally assisted substance use treatment programs follow a stricter federal rule. Under 42 U.S.C. § 290dd-2, records that identify a patient in these programs are confidential. They may be disclosed only for the purposes and under the circumstances the statute allows.

Under the federal confidentiality regulation, a written consent to a use or disclosure under the regulations in this part may be paper or electronic and must include specified elements. A written consent must include the name of the patient; the name or other specific identification of the person authorized to make the requested use or disclosure; a description of the information that identifies it in a specific and meaningful fashion; the name of the recipients; and the patient’s right to revoke the consent in writing, except to the extent that action has already been taken in reliance on it, along with how the patient may revoke consent. It must also include an expiration date or an expiration event that relates to the individual patient or the purpose of the use or disclosure; the signature of the patient, and, when required for a patient who is a minor, the signature of a person authorized to give consent under § 2.14, or, when required for a patient who has been adjudicated as lacking the capacity to make their own health care decisions or is deceased, the signature of a person authorized to sign under § 2.15; and the date on which the consent is signed, under 42 C.F.R. § 2.31.

Without consent, a court can still authorize disclosure. Under 42 C.F.R. § 2.64, a court may enter that order only if it finds good cause. The court must find that other ways of getting the information are not available or would not be effective. It must also find that the public interest and need for disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.

A court order alone does not force a provider to hand over records. Under 42 C.F.R. § 2.61, an authorizing order does not compel disclosure. A subpoena or similar legal mandate must be issued to compel it. A program that refuses to release records without consent or a qualifying order is following these federal rules.

School Records Versus Medical Records: Why the Right Law Matters

The rule that applies depends on whether the person holding the records is subject to the regulations in this part. 42 C.F.R. § 2.61 reads: “The person may not use or disclose the records in response to the subpoena unless a court of competent jurisdiction enters an authorizing order under the regulations in this part.”

Families often hold a mix of these records. Gather them as separate piles. Note who created each one and when.

When you ask for a record, name the exact provider, school, or program. Describe the type of record you need. A request sent to the right holder, with the right description, is easier to process than a general request to everyone.

Getting Records Through a Court Order or Subpoena in a Florida Case

A subpoena with no court order gets different treatment than a court order.

A court can also order an assessment. Under Fla. Stat. § 397.68141, a petition may come with a report from a qualified professional who examined the person within 30 days before filing. If the person was not assessed or refused, the petition must say so.

Under Fla. Stat. § 397.6957, the respondent must be present at a hearing on a petition for involuntary treatment services unless the court finds that the respondent knowingly, intelligently and voluntarily waives the right to be present or, upon receiving proof of service and evaluating the circumstances of the case, that presence is inconsistent with the respondent’s best interests or is likely to be injurious to self or others. An application for a court order authorizing the use or disclosure of patient records must use a fictitious name, such as John Doe, to refer to any patient, under the federal regulation.

Preparing a request the right way matters. A request sent without the correct process can be refused or delayed. For what families can do while waiting for a hearing, read our safety at home guide.

How Records Fit Into a Marchman Act Petition and Hearing

Records are one part of what a judge may consider. Under Fla. Stat. § 397.6957, the court shall hear and review all relevant evidence. That includes testimony from family members familiar with the person’s history. It also includes the results of the assessment.

The statute also requires a clinical assessment before involuntary treatment, unless the respondent is present in court and expressly waives the assessment. The clinical report must reach the clerk no later than the close of business the day before the hearing. Testimony must be taken under oath. The respondent may refuse to testify.

Where a petition is filed matters too. Under Fla. Stat. § 397.681, petitions go to the clerk in the county where the person is located, and no filing fee may be charged. In a Fifth District case, J.P. v. J.N., the court held that filing in the wrong county did not take away the circuit court’s jurisdiction.

The person named in the petition, called the respondent, has a right to counsel at every stage, although the respondent may waive that right if the respondent is present and the court finds that such waiver is made knowingly, intelligently, and voluntarily. Petitions for involuntary assessment and stabilization, court orders, and related records that are filed with or by a court under this part are confidential and exempt under Fla. Stat. § 397.6760. No one can predict how a judge will rule. Outcomes turn on the evidence presented at the hearing. Families in Miami-Dade and across South Florida can contact Robinson Casey to discuss their situation.

Practical Steps to Take Right Now

Start by writing down dated incidents. Note what happened, when, and who was present. Keep the notes factual and short.

• List every provider, clinic, hospital, or program that has treated your loved one, with contact details.
• Keep copies of every authorization request and every response you receive.
• Ask each provider in writing whether it needs a signed authorization or a court order.
• Note which provider holds which records, since some records sit with more than one holder.
• Avoid pressure tactics. Pressure can escalate a crisis.

If someone is in immediate danger, call 911 or go to the nearest emergency department. Safety comes before paperwork.

Talk With Robinson Casey About Your Family’s Situation

If you are worried about your loved one and trying to work out which records matter, you are in a hard place. You do not have to figure out the Marchman Act process alone. Robinson Casey focuses its practice on Marchman Act petitions and guardianship matters for families across South Florida and statewide. Richard J. Casey III, Esq. is the responsible lawyer for this page.

The firm offers a free first consultation. It is confidential and carries no obligation to continue. To schedule a consultation, call (561) 849-4700 or use the contact page. No lawyer can promise a particular result in any case, and this page makes no such promise.