The initial issue for the Court to determine in this guardianship proceeding pursuant to Mental Hygiene Law Article 81 for the appointment of a guardian for [*2]Christine P., a person who is allegedly in need of a guardian, is whether the Court appointed evaluator, the Hofstra Law Access to Justice Incubator ("Court Evaluator"), in preparing its report to the Court, can review the medical and psychiatric records of the respondent without her consent.

During the hearing on the accelerated return date of the Order to Show Cause dated May 27, 2014, (Knobel, J.), the respondent, through her court-appointed counsel, Mental Hygiene Legal Services (see Transcript at pages13, 18), requested an order vacating that portion of the order permitting the Court Evaluator to review the medical and psychiatric records of the respondent (Transcript at page 13, 18). This Court allowed the Court Evaluator to have this authority in light of the respondent's purported psychiatric hospitalization and the allegations of financial abuse of the respondent at the hands of her brother-in-law's home health care aides (see Mental Hygiene Law §81.09(d)). During oral argument, the Court Evaluator sought to review respondent's medical records and offered a compromise: that any medical record which would be part of the Evaluator's report would "be put in a separate addenda [for] in camera review only"; respondent rejected this offer (Transcript at pages 15, 18).

In support of her position that the Court Evaluator should not be permitted to inspect her medical records her counsel, argued that New York Law (e.g., the Physician-Patient Privilege; CPLR §4504[a]; Matter of Miguel M., 17 NY3d 37, 43-45 [2011]), and the Federal Health Insurance Portability and Accountability Act, prohibit the disclosure of confidential medical records unless the respondent gives her or his permission, or affirmatively places her medical and mental health condition in issue (Transcript at page 10). Counsel for respondent maintained that the rule established by the Appellate Division, Second Department in the Matter of Rosa B.-S. [William M.B.], 1 AD3d 355 [2nd Dept. 2003], is the controlling authority on this issue:

"[a] though a guardianship proceeding places the alleged incapacitated persons medical and mental condition in controversy, he or she does not waive the doctor-patient privilege unless he or she has affirmatively places his or her medical condition in issue" (Matter of Rosa B.-S. [William M.B.], 1 AD3d 355 [2nd Dept. 2003]).The Appellate Court subsequently held that the trial court erred in allowing into evidence testimony from the respondent's former physicians since the respondent never waived the physician-patient privilege or affirmatively asserted her mental condition at trial (Matter of Rosa B.-S. [William M.B.], supra at 356).

Respondent's reliance on Matter of Rosa B.-S. [William M.B.] is misplaced [*3]at this juncture in the proceeding since the question before this Court is not whether respondent's mental health records or testimony from respondent's treating psychiatrist should be admitted into evidence, as in the Matter of Rosa B.-S.(see Matter of Marie H. [Julie M.], 25 AD3d 704, 706 [2nd Dept. 2006]), but whether the Court Evaluator can be permitted by court order to inspect respondent's medical and psychiatric record over her objection (see Matter of Kufeld, 51 AD3d 483, 484 [1st Dept. 2008]).

The Physician-Patient privilege set for in CPLR §4504(a) "is purely a legislative creation" (People v. Sinski, 88 NY2d 487, 491[ 1996]) which bars physicians and other medical personnel from revealing "any information which [they] acquired in attending a patient in a professional capacity, and which was necessary to enable [them] to act in that capacity" (CPLR §4504 [a]; Dillenbeck v. Hess, 79 NY2d 278, 283 [1989]). "The rationale supporting it is that the protection of confidential information from involuntary disclosure will promote uninhibited communication between patient and physician for the purpose of obtaining appropriate medical treatment.....The privilege is not absolute, however. The Legislature has enacted a number of narrow exception abrogating it for various public policy reason ( see, e.g.,....Mental Hygiene Law §81.09[d] [allowing for inspection of medical records of an alleged incapacitated person...]" ( People v. Sinski; supra at 491-492).

Mental Hygiene Law §81.09 (d) provides, in relevant part, that "[t]he court evaluator may apply to the court for permission to inspect records of medical, psychological and/or psychiatric examination of the person alleged to be incapacitated; excepts as otherwise provided by federal or state law, if the court determines that such records are likely to contain information which will assist the court evaluator in completing his or her report to the court, the court may order the disclosure of such records to the court evaluator, notwithstanding the physician/patient privilege....."

In view of the fact that the Appellate Division, Second Department, has not specifically ruled on the question of whether the Trial Court has the authority to order the disclosure of the alleged incapacitated person's medical and psychiatric records to a Court Evaluator over the objection of an alleged incapacitated person who has not affirmatively put her medical or psychiatric condition into issue, this Court is bound to adopt and follow the holding of the Appellate Division, First Department, in the Matter of Kufeld, 51 AD3d 483 [2008], which granted the motion by the Court Evaluator to review the records of an alleged incapacitated person on the grounds that "the [physician-patient] privilege is....waived when a [*4]Court Evaluator seeks to review the records under §81.09 (d)" (Matter of Kufeld, supra at 484).

Accordingly, given the assertions in the petition at bar of the respondent's purported psychiatric impairment for which she was hospitalized and the alleged financial improprieties directed at the respondent by respondent's brother-in-law's home health aides, the Court concludes that the respondent's medical and psychiatric "records are likely to contain information which will assist the Court Evaluator in completing her report to the Court" (Mental Hygiene Law §81.09 [d]; Matter of Kufeld, supra at 484; Matter of Daniel TT., 39 AD3d 94, 98). Consequently, this Court orders that the Court Evaluator is authorized to examine the respondent's medical and psychiatric records or any relevant records which will assist her in preparing her report to the Court. The possible admissibility of those records into evidence will be determined at the hearing on this proceeding, which remains scheduled for August 14, 2014, at 9:30 a.m.

The foregoing constitutes the Decision and Order of this Court.

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