The Alabama Supreme Court Ruled That, in a Negligence Action Against a Residential Facility, the Psychotherapist-Patient Privilege Protected From Disclosure the Records of an Inpatient at a Mental Health Facility Who Assaulted Another Patient, Declining to Find a Public Safety Exception
In the case Ex parte Nw. Ala. Mental Health Ctr., 68 So.3d 792 (Ala. 2011), the Alabama Supreme Court reversed the mandate of the trial court, declining to find a public safety exception to the psychotherapist-patient privilege. The court vacated the trial court's order authorizing the release of privileged psychiatric records in a civil liability case. The Alabama Supreme Court reviewed the statutory exceptions to the psychotherapist-patient privilege and held that the trial court erred in ordering the release of the records on the ground of relevancy.
Facts of the Case
In the fall of 2007, Lawrence Neil Broadhead was admitted for treatment of depression and drug abuse to Bryce Hospital, a state-operated mental health facility. On February 19, 2008, Mr. Broadhead was discharged to the Hope Residential Facility (HRF), a mental-health facility operated by Northwest, a public corporation. He remained at HRF until February 29, 2008. During that time, Dimoris Johnson, who was also a patient at the Northwest facility, allegedly assaulted Mr. Broadhead. Mr. Broadhead was severely injured and, at the time of the appeal, remained in a semicomatose state.
In October 2008, Mr. Broadhead, through his mother, Ms. Yaw, sued Northwest and several of its administrative staff. Ms. Yaw asserted that the defendants had negligently or wantonly breached certain duties allegedly owed Mr. Broadhead, including, among other things, the duty to take proper security measures to ensure Mr. Broadhead's safety; the duty to supervise Mr. Johnson properly; and the duty to train, monitor, and supervise Northwest's employees sufficiently. Mr. Johnson was not named as a party to the action.
During discovery, Ms. Yaw filed a request for the production of Northwest's records relating to Mr. Johnson. Northwest objected to the request, asserting that the records were subject to psychotherapist-patient privilege. Ms. Yaw responded with a motion seeking to compel production of the requested materials. The trial court requested a memorandum from Ms. Yaw detailing why she believed the records were discoverable. Ms. Yaw's response brief asserted, among other things, “Mr. Johnson's right to have his mental health records concealed” must yield to “the public interest in safety” (Ex Parte Nw. Ala. Mental Health Ctr., p 794).
In September 2009, the trial court responded with a protective order requiring Northwest to submit the records at issue to the court for an in camera inspection. The trial court related that “they would designate which portions, if any, of said records are material and relevant to the issues of this cause, and are not otherwise available to [Ms. Yaw]” (Ex Parte Nw. Ala. Mental Health Ctr., p 794). Then, in January 2010, after reviewing the records, the trial court stated that “all records are materially relevant to the issues pending herein” and required that Mr. Johnson's records be provided to Ms. Yaw (Ex Parte Nw. Ala. Mental Health Ctr., p 794). Northwest then petitioned the Alabama Supreme Court for a writ of mandamus ordering a reversal of the trial court's January 2010 order.
Ruling and Reasoning
The Alabama Supreme Court focused its opinion on whether state statutory law recognizes the contended exceptions to the psychotherapy-patient privilege. The court's review first delineated the rationale for, and contours of, the privilege. The court then reviewed the Alabama statutory code as to exceptions to the privilege and related exceptions to the psychotherapist-patient privilege, such as proceedings for hospitalization, examination by order of a court, and a criminal defendant who is raising the insanity defense (Ala. Code § 34-26-2 (1975); Rule 503(d), Ala. R. Evid.).
Ms. Yaw had argued that there should be a “public policy” exception to the privilege, based on protection of society from the dangerous mentally ill (Ex Parte NWAMHC, p 796). Northwest had argued that public policy actually supports the application of the privilege in a case such as this (Ex Parte Nw. Ala. Mental Health Ctr., p 796). The court recognized both of these competing rationales as legitimate concerns as to the proper limits of the psychotherapy-patient privilege. The court quoted its opinion in Ex parte United Serv. Stations, Inc. (628 So.2d 504 (Ala. 1993)): “The strength of the public policy on which the statutory psychotherapist-patient privilege is based has been well recognized…. [T]he privilege is not easily outweighed by competing interests” (Ex Parte Nw. Ala. Mental Health Ctr., p 797). The court opined that a “psychiatrist must have his patient's confidence or he cannot help him” (Ex Parte Nw. Ala. Mental Health Ctr., p 797, quoting Taylor v. United States, 222 F.2d 401 (D.C. Cir. 1955)). However, the Alabama Supreme Court also recognized that a “mental patient's threat of serious harm to an identified victim is an appropriate circumstance under which the physician-patient privilege may be waived” (Ex Parte Nw. Ala. Mental Health Ctr., p 798, quoting Peck v. Counseling Service of Addison County, Inc., 499 A.2d 426 (Vt. 1985)). Nonetheless, the court refused to “create an additional exception in the interest of ‘public policy’…. Such creations are best left to the legislature” (Ex Parte Nw. Ala. Mental Health Ctr., p 798).
Ms. Yaw also argued that Mr. Johnson's medical records should be released, since they were the only source of relevant information for her legal action and were thus necessary for the proper adjudication of her case (Ex Parte Nw. Ala. Mental Health Ctr., pp 797–8). The court dismissed this argument relating a lack of “statute, rule, or precedent that recognizes, or impels us to recognize in this case, an exception to the privilege that would narrow those parameters by making the privilege inapplicable when a plaintiff establishes that privileged information is ‘necessary’ to proving a cause of action” (Ex Parte Nw. Ala. Mental Health Ctr., p 798).
Finally, Ms. Yaw argued that Mr. Johnson had waived his privilege when he raised the defense of insanity in his criminal trial, but the court pointed out that he was currently hospitalized in a forensic setting for the purpose of determining his competency to stand trial. The court held that it had been presented “with no argument that an inquiry into the competency of a defendant to stand trial in a criminal proceeding has any bearing on the availability of the psychotherapist-patient privilege in a collateral civil proceeding” (Ex Parte Nw. Ala. Mental Health Ctr., p 798).
Discussion
The majority opinion maintained an aloof attitude vis-à-vis the public-policy argument raised by Ms. Yaw. The case certainly hinted at points raised in Tarasoff (Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976)). However, the Tarasoff case is never mentioned in Ex Parte NWAMHC. In reality, there are definite differences between this case and Tarasoff. There is never any indication that the defendants in Ex Parte NWAMHC were aware, before the assault, of an imminent threat posed by Mr. Johnson toward Mr. Broadhead. It is possible that there were indicators in Mr. Johnson's sealed record of prior assaultive behavior, suggesting that he posed a general risk toward other residents of the facilities where he resided. Less likely is the possibility that Mr. Johnson's record would have indicated that he posed a specific Tarasoff threat toward Mr. Broadhead. Subjective knowledge on the part of HRF of a specific threat posed by Mr. Johnson toward Mr. Broadhead could have grounded a Tarasoff duty.
Nevertheless, the idea that confidential mental health records should be opened post hoc, to ground liability for an untoward outcome, was rejected by the Alabama Supreme Court. The opinion in Ex Parte NWAMHC asserts that expanding exceptions to the psychotherapist-patient privilege could result in vitiation of the protective effects provided by the privilege. The privilege provides long-term, general, societal protection via diffusion of unresolved hostility within the confidentiality of therapy. Conversely, the Tarasoff exception provides a short-term remedy intended to protect the public against a more “acute” hostility. Whether “too much Tarasoff” actually saps or undermines the putative protective effects of the psychotherapist-patient privilege remains an open debate (Buckner F, Firestone M: “Where the public peril…. J Leg Med 21:187–222, 2000)
- © 2013 American Academy of Psychiatry and the Law
