Psychotherapist-Patient Privilege

Facts of the Case

The Maryland Board of Social Work Examiners (Board) received a credible complaint that Ms. F., a licensed social worker, had unlawfully failed to report her client John Doe's admissions during therapy of child abuse. The Board issued a subpoena duces tecum to Ms. F. for her treatment records, pursuant to its statutory investigative authority.

Here, the five-judge majority and the two-judge dissent part company as to the facts. The majority opinion clearly states that the subpoena sought the charts only of John Doe and his wife Jane Doe, also a client of Ms. F. The dissent flatly disagrees, reading the subpoena as calling for the charts of all of Ms. F.'s clients. (Curiously, neither side simply quotes the subpoena itself, which presumably would settle the issue.)

Ms. F., joined by John and Jane Doe, moved in the Baltimore city circuit court to quash the subpoena, which was denied, and they appealed. In the meantime, Ms. F. settled the Board's complaint, admitting that she “knowingly failed to report suspected child abuse” and related transgressions (862 A.2d at 1012), and accepting a license suspension of one year. This did not moot the issue of her records, however, as the board still sought them in pursuance of a specific provision in the settlement agreement: [I]f the Board is able to obtain [the] records, the Board will not be precluded from taking further action involving Ms. F.'s license if [the] records provide probable cause to support violations in addition to those investigated and pursued in these proceedings [862 A.2d at 1012].

This language appears to support the dissent's view that the Board was on “a fishing expedition” and “a witch hunt into the emotional lives” (862 A.2d at 1014), “of all treatment files for all of Ms. F.'s clients (862 A.2d at 1017; emphasis in original).

Ruling and Reasoning

Following an intermediate excursion through the Court of Special Appeals, the Maryland Court of Appeals affirmed the judgment of the Baltimore city circuit court, declaring: If…a privilege or privacy right were to take precedence over the Board's interest in investigating allegations that one of its licensees was acting in violation of his or her professional obligations, the lack of access to client treatment records could impede a meaningful investigation into that conduct and discovery of a further basis for disciplinary action [862 A.2d at 1013].

As to the privilege and confidentiality claims, the court cited no less than four separate Maryland statutes clearly establishing an investigation of suspected child abuse as an exception to both privilege and confidentiality. In an exercise of judicial overkill, the court also cited statutory and case law from Ohio and Rhode Island that parallels Maryland's.

The federal constitutional privacy argument, based on Whalen v. Roe, 429 U.S. 589 (1977), was more substantial. Whalen established two kinds of privacy interests: “One is the individual interest in avoiding disclosure of certain personal matters, and another is the interest in independence in making certain kinds of important decisions” (429 U.S. at 600). Medical records, particularly mental health records, clearly fall within the first of these interests.

Under Maryland law, strict scrutiny applies to this right. That is, government action limiting it, such as the subpoena in this case, is permissible only if “justified by a ′compelling state interest' ” (862 A.2d at 1008). In turn, this “compelling state interest” evaluation is sui generis (case specific). U.S. v. Westinghouse Electric Corp., 638 F.2d 570 (3d Cir. 1980), enunciates the pivotal considerations: …the type of record requested, the information it does or might contain, the potential for harm in subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access [862 A.2d at 1014, dissenting opinion].

Judged by these factors, the majority of the court easily concluded that an official investigation into whether a social worker unlawfully suppressed evidence of child molestation constituted a “compelling state interest.”

Dissent

The two dissenting judges agreed that an investigation of nondisclosure of child abuse clearly is an exception to statutory privilege and confidentiality and that compulsory disclosure of patient records in such a situation does not traduce a constitutional right of privacy.

They parted company with the majority only, but crucially, as to the breadth of the subpoena that the court upheld, which they read to reach the records of all of Ms. F.'s patients, noting that no “indicia of systemic wrongdoing by Ms. F.” existed, only the alleged failure to report statements by one particular client. As such, the dissent forcefully protested an …intru[sion] on the sensitive and highly personal information of all people who sought treatment by [Ms. F.]…[based on] mere interest by the Board in the files…of people who have not been notified nor been given the opportunity to be heard about the disclosure of their mental health records…” [862 A.2d at 1014, emphasis in original].

Discussion

The court slightly bobbled the issue of privilege by remarking that privilege “affords social workers and their clients similar protections…” (862 A.2d at 1014). In fact, of course, privilege accrues only to the client, who may freely waive it, irrespective of the wishes of the therapist. A comparison of the resulting rhetoric in this case is interesting. The majority, consistent with its misconception that privilege exists to shield the psychotherapist as well as the patient, emphasized the regulation of psychotherapy: [T]here may exist other violations in addition to those investigated and pursued by the Board. The Board's desire for these records is…an understandable need by the Board to have all the relevant facts regarding Ms. F.'s conduct as a licensed social worker before it so that it can best decide if additional discipline is proper… [862 A.2d at 1012, interior quotation marks omitted].

The dissent, by contrast, appears more attentive to the healing potential of psychotherapy, and its fragility: Without something more than mere unsupported suspicion, disclosure would result in chilling the free discourse required between any treatment provider and her clients and deter clients from seeking help from any other treatment provider. It could irreparably harm the relationship and deprive all such clients of much needed counseling and services (862 A.2d at 1015).

Perhaps the dispute within the court is not solely factual but, more fundamentally, as with the judiciary generally, an underlying philosophical divide over the nature and value of mental health care.