Psychiatrist-patient privilege; defendant’s Sixth Amendment right to present a defense

State v. Fay, 326 Conn. 742 (Conn. 2017)

The Connecticut Supreme Court rules that where a defendant shows a “compelling need” for privileged psychiatric records of a homicide victim as material to his defense, “the interests of the accused must prevail over the victim's psychiatrist-patient privilege” and an in camera review of the records may be undertaken.

Found in DMHL Volume 36, Issue 3

Mental Health Providers, Privilege

Bradley v. Eighth Judicial Dist. Court of Nev., 405 P.3d 668 (Nev. 2017)

The Supreme Court of Nevada ruled that psychologist-patient privilege applied and was not waived where counseling records concerned only treatment and no substantial part was shared with anyone, treatment was not substantively at issue in any claim or defense, and neither state law, due process, nor the right to confrontation required disclosure.

Found in DMHL Volume 37, Issue 1

Psychotherapist-Patient Privilege in California Protects Psychotherapy Records from Disclosure Even When Therapy Only Commenced Because It Was a Condition of Probation

Story v. Superior Court, 135 Cal. Rptr. 2d 532 (2003); 72(2) U.S. Law Week 1032 (July. 15, 2003)

A California Court of Appeal held that California's psychotherapist-patient  privilege may be asserted to block the release of a criminal defendant's  psychotherapy  records even though those records pertain to therapy into which the defendant entered only because it was made a condition of probation. After the defendant was charged with murder during the course of a rape and burglary, the state sought a court order to release the defendant's psychotherapy records.  In a case of first impression in California, the court ruled the defendant was a "patient" for purpose of this privilege regardless of why he entered treatment and was therefore entitled to raise this privilege in blocking the state's request for records...

Found in DMHL Volume 23 Issue 1

Ninth Circuit Refuses to Recognize "Dangerous Patient" Exception to Federal Psychotherapist-Patient Privilege

United States v. Chase, 340 F.3d 978 (9th Cir. 2003); 72(9) U.S. Law Week  1145-46 (Sept. 16, 2003)

The Ninth Circuit of the U.S. Court of Appeals ruled that although therapists have a duty to warn authorities about patients' threats to inflict serious harm on others, this does not mean therapists may testify in subsequent federal court proceedings about these statements.  In this case, the defendant suggested during therapy sessions that he might injure FBI agents and other individuals. The psychotherapist alerted law enforcement personnel and, after the psychotherapist testified at trial about the defendant's threats, the defendant was convicted of threatening to murder federal agents....

Found in DMHL Volume 23 Issue 1

Ruling Ordering Evidentiary Hearing on Whether Defendant's Confession to Prison Psychiatrist Was Involuntary Because He Believed Statements Were Protected by Confidentiality Agreement Not Disturbed

Beaty v. Stewart, 303 F.3d 975 (9th Cir. 2002), cert. denied, Stewart v. Beaty, 123 S. Ct. 2073 (2003); 71(44) U.S. Law Week 3715 (May 20, 2003)

The Supreme Court declined to review a decision by the Ninth Circuit that permitted a criminal defendant to obtain a new hearing on whether his confession had been involuntary under the Fifth Amendment.  The defendant had been convicted of murder partly on the strength of a prison psychiatrist's testimony regarding a confession the defendant made to him after a group therapy session.  The Ninth Circuit held the defendant was entitled to a hearing on whether he reasonably believed his statements to the psychiatrist were protected by a confidentiality agreement he had signed that promised that "all group communication" would be kept confidential...

Found in DMHL Volume 23 Issue 1

Patient Confidentiality Not Violated When Physicians in Same Medical Office Communicated About Patient's HIV Status

Suesbury v. Caceres, 840 A.2d 1285 (D.C. 2004)

The District of Columbia, where this case arose, has recognized the tort of breach of the confidential physician-patient relationship.  A patient, who was HIV positive, brought a lawsuit against a physician and his medical office, claiming such a breach.  The claim arose when one of the patient's doctors sent a memorandum to another doctor within the medical office regarding a claim by the patient that the second doctor had sexually molested him.  The memo disclosed that the patient's HIV status had recently deteriorated...

Found in DMHL Volume 24 Issue 1

Parent May Be Denied Access to Child's Mental Health Records During Divorce and Custody Proceedings

In re Berg, 886 A.2d 980 (N.H. 2005)

Children may be receiving mental health services while their parents are in the process of becoming divorced.  During a custody dispute, a parent may seek to gain access to a child's mental health records in an effort to establish through the discussions between the child and the child's therapist that the other parent has engaged in inappropriate conduct. Although parents generally have a right to access the mental health records of their children, the New Hampshire Supreme Court ruled that this right is significantly limited when asserted in connection with divorce proceedings and custody disputes...

Found in DMHL Volume 25 Issue 2

Therapists’ duty to disclose client’s threats to harm third parties

State v. Expose, No. A13-1285, 2015 WL 8343119 (Minn. Dec. 9, 2015)

Minnesota statutory law provides no “threats exception” to privileged mental health client information

Background: Jerry Expose, Jr. was required as a probation condition for a prior conviction to attend anger-management therapy sessions with N.M., a mental-health practitioner. During one session, Expose became increasingly angry and made several threatening statements against D.P., a child caseworker, whom Expose felt was “a barrier to him getting his kids back.” N.M. felt that these “specific threats of physical violence against an identifiable person” had triggered her statutory duty to warn, and she reported Expose’s statements to the police. N.M. testified to the statements at Expose’s trial, and Expose was convicted in the Ramsey County District Court of making terroristic threats. Expose appealed arguing that N.M.’s testimony was inadmissible because it broke the therapist-client privilege. The Court of Appeals reversed and remanded, and the Supreme Court of Minnesota granted review.

Holdings: The Supreme Court of Minnesota affirmed the judgment of the Court of Appeals and remanded the case to the district court. The Supreme Court held that the therapist-client privilege statute, as an evidentiary rule, lacked a “threats exception” either “by implication from the duty-to-warn statute or under our authority to promulgate rules of evidence.” Thus, the Court found that the district court had abused its discretion in allowing N.M. to testify about Expose’s statements without his consent.

Found in Found in DMHL Volume 34, Issue 4

Confidentiality of Medical Records

Stuckey v. Renaissance at Midway, 2015 IL App (1st) 143111, 45 N.E.3d 1151 (Il. Dec. 18, 2015)

In litigation over nursing home liability for a resident’s assault on another resident, state confidentiality laws prohibit and prevent discovery by the plaintiff of the medical records of the resident who committed the assault.

Background: While a resident at a long-term care facility operated by defendants, Robert Holman was physically assaulted by another resident. Plaintiff Johnnie Stuckey— as attorney-in-fact for Holman—filed a personal injury action to recover damages incurred in the assault. Plaintiff moved to compel defendants to produce partially redacted records regarding the resident who assaulted Holman. Defense counsel refused and was held in “friendly contempt.” On appeal, defendants contended that the circuit court erred in ordering production of the records, arguing that both the Illinois’ Mental Health and Developmental Disabilities Confidentiality Act (the “Confidentiality Act”) and physician-patient privilege prohibited disclosure of the records.

Holdings: The appellate court agreed with the defendants, reversing the circuit court’s discovery orders and vacating the order imposing a fine on defendants for refusal to comply with those discovery orders. The appellate court concluded that the records were protected by the Confidentiality Act and that, because the plaintiff had not shown any exception to the provisions of the Act, the defendant could not be compelled to produce the records.

Notable Points:

Plaintiff failed to raise any possible exception to the Confidentiality Act that would authorize disclosure: Because plaintiff sought records including patient information forms, nurse’s notes, care plans, and social service progress notes—all documents that constitute “records” or “communications” under the Mental Health and Developmental Disabilities Confidentiality Act—plaintiff was required to demonstrate a specific exception to the Confidentiality Act that allowed disclosure. Statutory exceptions, however, are “narrowly crafted” and plaintiff never asserted the applicability of any exception.

Found in Found in DMHL Volume 35, Issue 1