Ruling Hinges On Distinction Between Forensic Evaluations And Health Care
In Doe G v. Dep't of Corr., 410 P.3d 1156 (Wash. 2018), the pro se petitioner Donna Zink and the Washington Department of Corrections (DOC) sought the reversal of a published court of appeals decision that affirmed the trial court ruling in favor of the respondents, John Does G, I, and J (John Does). The Supreme Court of Washington considered whether special sex offender sentencing-alternative (SSOSA) evaluations contain health care information and should therefore be exempt from disclosure under the state's Public Records Act (PRA) (Wash. Rev. Code § 42.56.360(2) (2014)).
The Supreme Court of Washington held that the SSOSA evaluations were improperly enjoined from public disclosure because they did not contain “health care information” within the meaning of Wash. Rev. Code § 42.56.360(2) and because they were forensic examinations done for the purpose of aiding the court in sentencing of sex offenders and did not directly relate to health care.
Facts of the Case
Sex offenders who are eligible and request a SSOSA must undergo an evaluation to aid the court in determining whether the offender is amenable to treatment and to assess the offender's relative risk to the community. In July 2014, Donna Zink sent a PRA request to the DOC for all SSOSA evaluations since 1990. The respondents (collectively John Does), comprising two former level I sex offenders who had been relieved from the duty to register and one compliant level I sex offender, sued to prevent the DOC from disclosing their evaluations. The offenders also sought class certification to represent all compliant level I sex offenders who had been evaluated for a sentencing alternative since 1990. The trial court granted a temporary restraining order preventing the DOC from releasing any SSOSA evaluations of level I sex offenders. On November 6, 2015, the trial court entered summary judgment in favor of the plaintiffs, ruling that the SSOSA evaluations of level I sex offenders were exempt from disclosure and prevented the DOC from releasing the SSOSA evaluations of level I sex offenders. The DOC and Ms. Zink both appealed the trial court's summary judgment ruling.
The court of appeals affirmed the trial court order enjoining the disclosure of level I sex offender SSOSA evaluations. The court explained that the SSOSA evaluations contain confidential health care information because they include a diagnosis of the offender's mental conditions, results of physical and psychological tests, and assessments of amenability to treatment, and that, if not redacted, they are exempt from PRA disclosure under Wash. Rev. Code § 42.56.360(2). The Washington DOC and Ms. Zink sought reversal of the court of appeals decisions and inspired the Supreme Court of Washington to review all agency actions taken or challenged under the PRA de novo.
Ruling and Reasoning
The primary question in this case is whether SSOSA evaluations are exempt from public disclosure under the PRA because they contain “health care information.” The Supreme Court of Washington reversed the court of appeals orders and held that SSOSA evaluations are not exempt under the PRA because they do not contain “health care information.”
The court reasoned that, pursuant to the PRA, courts are to recognize that free and open examination of public records is in the public interest, even if it might cause inconvenience or embarrassment to public officials or others. A “public record” is virtually any record related to the government's conduct or performance. The court clarified that the legislature enacted the PRA to ensure broad disclosure of public records unless the records fall within a specific statutory exemption, such as “health care information” under the Wash. Rev. Code § 70.02, the Uniform Health Care Information Act.
One pertinent inquiry was whether a SSOSA evaluation “directly relates to a patient's health care” within the meaning of Wash. Rev. Code § 70.02.010(16) (2014), which defines “health care information” as information that identifies or can readily be associated with the identity of a patient and directly relates to the patient's health care. “Directly” means purposefully or decidedly and straight to the mark, which indicates that the legislature chose to narrow its definition of health care information to only include information for the direct purpose of health care. The court reasoned that a SSOSA evaluation is not directly related to health care because its purpose is to assist the court in determining whether the offender should be granted an alternative sentence instead of jail time and is a forensic examination, not a medical one. Unlike typical health care evaluations, forensic evaluations do not focus on the individual's health and are not for the purpose of treatment; therefore, they are not subject to the same privacies and privileges as medical evaluations. SSOSA evaluations are made for the purpose of publishing the results to the court, to aid the court in deciding whether the offender is amenable to treatment, and whether a SSOSA will serve public safety interests and the goal of offender rehabilitation. Unlike typical health care evaluations that enjoy the doctor–patient privilege and focus on the best interest of the patient, SSOSA evaluations are made with the understanding that they will be shared with others and focus on the best interest of the court, the community, the victim, and the offender. Because the SSOSA is a sentencing alternative, the public's involvement plays a significant role. The court emphasized that the public must be able to scrutinize the sentences given to offenders to ensure the court is following the sentencing statutes and is not granting or denying SSOSA sentences inappropriately.
The SSOSA evaluations must be performed by a certified sex offender treatment provider and must also include the evaluator's diagnostic impressions and a proposed treatment plan. But the court points out that the provider who completed the offender's evaluation is prohibited from providing subsequent treatment to the offender, except in limited circumstances. This indicates that the legislature's intent was to distinguish the forensic stage (the SSOSA evaluation), which lacks the doctor–patient privilege, from the potentially medical stage (the SSOSA alternative itself), which carries out the proposed treatment plan and may include a doctor–patient privilege. The court said that SSOSA evaluations involve legal determinations, not medical ones, and therefore do not contain “health care information” and are not exempt from public disclosure.
Dissent
Two Justices dissented from the majority on several points. Information can still be directly related to a patient's health care without being for the sole purpose of obtaining treatment. The use of SSOSA evaluations for legal determinations does not exclude them from directly relating to health care. Neither the PRA nor Wash. Rev. Code § 70.02 requires the existence of a doctor–patient privilege to protect health care information from disclosure. The legislature did not intend to separate the “forensic stage” from a “potentially medical stage,” stating “it is the public policy of this state that a patient's interest in the proper use and disclosure of the patient's health care information survives even when the information is held by persons other than health care providers” (Doe, p 209, citing the legislative history for Wash. Rev. Code § 70.02.005).
Discussion
This case highlights potential complications that may arise while evaluating sex offenders for alternative sentencing. The court had to consider the sensitive nature of any health care information obtained from the SSOSA evaluations, as well as the importance of abiding by the PRA, particularly when the matter at hand may significantly affect public safety. The court differentiated the purpose of a SSOSA evaluation (i.e., the forensic stage) from the purpose of a SSOSA sentence (i.e., the potentially medical stage). This distinction became the foundation of the court's rulings that SSOSA evaluations do not contain “health care information” and do not fall within any specific exemption from PRA disclosure. Ultimately, the majority held that the information in SSOSA evaluations is only incidentally related to health care, and exempting it would be inconsistent with the PRA's broad disclosure policy.
The dissent disagreed with such a distinction and argued that forensic examinations may necessarily include health care information and should be protected with the same sensitivity despite its primary use. Neither the dissent nor the majority chose to comment on the federal HIPAA laws.
- © 2019 American Academy of Psychiatry and the Law
