We note also that Wis. STAT. § 51.30(4)(b)4. permits a person to seek a court order permitting disclosure. ¶ 27. Third, and most significantly, we explicitly rejected the circuit court's conclusion that Schuster creates a public policy exception to Wis. STAT. § 51.30(4) in Daniel A. v. Walter H., 195 Wis. 2d 971, 537 N.W2d 103 (Ct. App. 1995). We held in Daniel A, in no uncertain terms, that "[t]he Schuster decision does not authorize the court of appeals to add exceptions to the treatment-records privilege in § 51.30 . . . .
" However, it is not identification of a person who may have behaved dangerously, but identification of the person as a patient that is protected by the confidentiality accorded by WIS. STAT. § 51.30(1)(am) to "registration records." See Daniel A. v. Walter H., 195 Wis. 2d 971, 989-90, 537 N.W.2d 103 (Ct. App. 1995) ("Since every patient is presumably identified in a record showing that he or she has received such services, information which identifies a person as a patient is subject to the privilege.") (emphasis added). As noted above, see ¶ 5 supra, Gray's status as a mental health patient became a matter of public record in his criminal case because it was disclosed in the evaluation of his competency to proceed to trial.
However, we have examined records relating to a person's mental health under ch. 51, and we have concluded that the Mental Health Act and its administrative rules severely restrict the release of information describing the conduct of an emotionally disturbed person, unless that individual consents to the disclosure. SeeDaniel A. v. Walter H., 195 Wis.2d 971, 983-84, 537 N.W.2d 103, 108 (Ct.App. 1995). A nursing home is a health care provider as defined by Wis. Stat. § 146.81(1)(m) as it incorporates Wis. Stat. § 50.135(1).
See People v. Palomo, 31 P.3d 879, 885 (Colo. 2001) (holding that the physician-patient privilege is personal to the patient or her estate); Burns v. Boyden, 133 P.3d 370, 378 (Utah 2006) (holding that under Utah Rule of Evidence 506(c), conservators have the right to claim the physician-patient privilege of the patient); Krueger v. Walter H., 195 Wis.2d 971, 537 N.W.2d 103, 112-13 (App. 1995) (recognizing that a conservator or guardian may assert and waive the patient's physician-patient privilege). The initial burden of establishing the applicability of the physician-patient privilege in this case rests with Mr. Hartmann.
If the balance needs adjustment, that is a legislative matter. See Daniel A. v. Walter H., 195 Wis.2d 971, 999, 537 N.W.2d 103 (Ct.App.1995) (observing, in context of interpretation of Wis. Stat. § 51.30, “[w]e cannot add exceptions to a statutory privilege under the aegis of public policy”). ¶ 44 The Tribune makes a related contention that, because information bearing on mental health treatment is often referenced in public court records in criminal prosecutions and proceedings involving the supervision of probationers, the conditional release plan cannot be a confidential record.