Physician–Patient Privilege

Yedishtra Naidoo; J. Richard Ciccone

The Reporting of Child Abuse Argued as an Exception to Physician–Patient Privilege in Criminal Proceedings

In People v. Rivera, 33 N.E.3d 465 (N.Y. 2015), the New York Court of Appeals recognized that there is an exception to physician–patient privilege in child-protection hearings. The court considered whether the mandated reporting of child abuse creates an exception to physician–patient privilege in subsequent criminal proceedings.

Facts of the Case

In November 2007, David Rivera was accused of raping and sodomizing his 11-year-old niece. The child reported the abuse to her pediatrician who subsequently reported the case to the Administration for Child Services (ACS). After he heard about the allegation from a family member, Mr. Rivera was taken to the Columbia Presbyterian Hospital (CPH) psychiatric emergency room by ambulance complaining of depression and suicidal ideation. During treatment at CPH, he revealed to his psychiatrist that he had sexually abused the child. The psychiatrist reported the abuse to ACS, as required by the state mandatory child abuse reporting law (N.Y. Soc. Serv. Law § 413 (2014)). There was no evidence that Mr. Rivera was aware of either report to ACS.

Following discharge four weeks later, Mr. Rivera was arrested and charged with predatory sexual assault against a child (N.Y. Penal Law § 130.96 (2014)). The District Attorney subpoenaed any of Mr. Rivera's treatment records from CPH that included admissions Mr. Rivera may have made concerning the predatory sexual assault charge. The district attorney argued that the records could be released as either an exception to privilege or a waiver of the physician–patient privilege. Mr. Rivera countered that he had not waived privilege and referenced N.Y. C.P.L.R. 4504(a) (2012), which states, “unless a patient waives the privilege, a person authorized to practice medicine shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.”

The trial court stated that a defendant's admission to his psychiatrist would be privileged if it were made during the course of diagnosis and treatment. However, the court determined the treating psychiatrist's testimony in this case to be admissible because the abuse had already been disclosed to ACS.

The treating psychiatrist testified that Mr. Rivera admitted to having sexually abused his niece. Mr. Rivera testified that he had not sexually abused the child. During summation, the district attorney referred to the psychiatrist's testimony and, during deliberations, the jury requested a read-back of the testimony. Mr. Rivera was convicted of predatory sexual assault against a child and sentenced to a term of 13 years to life in prison.

Mr. Rivera appealed the decision. The Appellate Division unanimously reversed the conviction and remanded for a new trial (People v. Rivera, 4 N.E. 3d 367 (N.Y. 2014)). The appellate court stated the psychiatrist's proper disclosure of the child abuse to ACS did not create an exception to the physician–patient privilege in a criminal proceeding. The court maintained that allowing the psychiatrist's testimony was not harmless error because the jury requested a read-back of only that testimony.

The District Attorney appealed the reversal to New York's highest court, the Court of Appeals of New York.

Ruling and Reasoning

The District Attorney presented three arguments to the court of appeals. The first argument was that physicians are required by law to report suspected cases of child abuse, and Mr. Rivera could not reasonably have expected that physician–patient privilege would apply to his admission to the psychiatrist. The court of appeals responded that exceptions to privilege are narrowly defined. New York law does not contain exceptions to physician–patient privilege for the purpose of criminal proceedings, even when the case involves child abuse. Child-protection hearings are an exception to privilege and differ from criminal proceedings, in that their aim is to ensure the safety of children. The goal of criminal proceedings is to punish the defendant and potentially deprive him of liberty.

Second, the district attorney argued that child-protection objectives would be undermined if the treating psychiatrist could not testify about the reported abuse perpetrated by Mr. Rivera. The court of appeals responded that the child's welfare remained protected without the psychiatrist's testimony as a result of the existence of mandatory reporting statutes.

The district attorney's final argument was that the defendant's psychiatric testimony was harmless error. The court of appeals agreed with the lower court, reasoning that the error was not harmless.

Thus, the Court of Appeals of New York affirmed the decision of the Appellate Division, holding that the trial court violated physician–patient privilege.

Discussion

In 1828, to encourage citizens to seek medical attention, New York became the first state to enact legislation recognizing the physician–patient privilege. At the present time, 44 states have enacted physician–patient privilege statutes. Psychiatrists are covered by psychotherapist–patient privilege in the remaining states. Physician–patient privilege is a legal right of the patient that prevents the physician from testifying about information provided to the physician by the patient that was necessary for diagnosis and treatment. Privilege furthers the doctor–patient relationship and encourages unrestrained communication. It also encourages physicians to fully and accurately record their patients' confidential information (Ciccone JR: Privilege and confidentiality: psychiatric and legal considerations. Psychiatric Med 2: 273–85, 1984).

The importance of privilege was emphasized by the American Psychiatric Association (APA) in a 2010 position statement that identified patients' openness in treatment as reducing danger to society by controlling psychiatric conditions that may lead to violence. (American Psychiatric Association Position Statement on “No ‘Dangerous Patient’ Exception to Federal Psychotherapist-Patient Testimonial Privilege,” Background Information. Available at http://www.psychiatry.org. Accessed December 2, 2015.)

Similarly, the New York State Psychiatric Association emphasized the importance of physician–patient privilege in an amicus brief submitted to the New York Court of Appeals in Rivera, arguing that privilege should not be sacrificed in the case of mandatory reporting of child abuse to a third party. It stated that evidentiary privilege is important to encourage uninhibited communication between physicians and patients for the purpose of encouraging patients to secure appropriate treatment. The brief also noted that evidentiary privilege shields patients from humiliation, embarrassment, and disgrace by guaranteeing confidentiality (Amicus Curiae Brief for New York State Psychiatric Association, December 9, 2013).

Psychotherapist–patient privilege has been recognized in all 50 states, but it was not until Jaffee v. Redmond, 518 U.S. 1 (1996), that this privilege was established in the federal courts. The APA argued in an amicus brief that the court should recognize psychotherapist–patient privilege under Federal Rule of Evidence 501. The Fed. R. Evid. 501 was passed by Congress in 1975. Rule 501 did not name specific privileges, but authorized federal courts to create new privileges by interpreting “common law principles … in light of reason and experience.” This flexible language allowed the contours of privilege to be determined in courts, rather than being rigidly codified. In his majority opinion in Jaffee, Justice Stevens wrote that psychotherapist–patient privilege serves important private and public interests. As a private interest, “effective psychotherapy … depends on an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of acts, emotions, memories, and fears” (Jaffee, p 10). Regarding the public interests Justice Stevens wrote “the mental health of our citizenry, no less than its physical health, is a public good of transcendent importance” because it sustains a “mentally stable society” (Jaffee, p 12). Jaffee left the outlines of psychotherapist–patient privilege open, to be defined further by subsequent court rulings.

An exception to privilege is not without its limits. In New York State, privilege may be sacrificed for greater interests, such as in cases involving child abuse. Reporting child abuse and testifying at child-protection hearings are essential because they defend children. A limit to this exception to privilege was asserted in Rivera, where the court held that mandatory reporting of child abuse does not abrogate privilege in criminal proceedings. Courts have stated that privilege should not be abrogated when there is no imminent danger to avert by the psychiatrist's testimony. In Rivera, imminent danger was not present, because the abuse had already occurred by the time of the criminal trial. Furthermore, it has been argued that the abrogation of privilege in this case would run counter to child-protection objectives because it could discourage individuals from speaking openly to their psychiatrists, thus preventing victims from being warned of potential danger (Amicus Curiae Brief for New York State Psychiatric Association, December 9, 2013). Finally, in Rivera, the court found that criminal proceedings require higher evidentiary standards than child-protection proceedings because criminal proceedings may result in the deprivation of liberty.