Psychiatrist Couldn't Testify in Child Abuse Case, Says N.Y. Ct.

What are the limits of the doctor/patient privilege as it relates to an admission of child abuse? Can a doctor, or a psychiatrist, call the police, or children's services, if the psychiatrist suspects his client of child sexual abuse; or, indeed, if the client has admitted to it?

The answer to those questions are left unanswered by the New York Court of Appeals, but at the very least, we know that the psychiatrist can't testify at trial.

Mandatory Reporting?

An 11-year-old told her pediatrician she had been sexually abused by the defendant, David Rivera. After the mother told Rivera this, he complained of depression and suicide and was taken to the psychiatric emergency room of a local hospital, where he told the psychiatrist that, yes, he had sexually abused the child. The psychiatrist reported this to children's services, who reported it to police, who charged Rivera.

The prosecution subpoenaed the psychiatrist's records for any admissions Rivera may have made. While the trial court said the admissions were privileged, it nevertheless said the admissions could come in at trial because the psychiatrist disclosed them to children's services.

No Testifying at Trial

The Court of Appeals declined to address the larger question -- whether it was right for the psychiatrist to volunteer information to the authorities -- instead focusing on the narrower issue of whether the psychiatrist could testify at trial.

On this question, the People went all out and claimed that an admission of committing sexual abuse is a special category and that "defendant had no reason to believe that it would remain confidential." The Court of Appeals wasn't going to go that far, emphasizing the policy objectives of preserving the psychiatrist's ethical responsibilities and ensuring the patient can be as forthright as possible without fear of embarrassment or prosecution.

Even though the state legislature has carved out several exceptions to physician/patient privilege, the court observed that revoking an expectation of confidentiality surrounding admissions of sexual abuse of a child isn't among them. While doctors are statutorily obligated to report if they suspect a minor patient has been the victim of a crime, the law contains no such requirement when the perpetrator of child sexual abuse makes an admission.

The court also observed a in the context of many of the statutory exceptions and the current appeal. The exceptions apply generally to child abuse or custody proceedings, but this case is about a criminal proceeding -- meaning "the relaxed evidentiary standards in child protection proceedings lend no credence to the People's argument that defendant should have known that any admission of abuse he made to his psychiatrist would not be kept confidential." Thus, even if a patient knows the psychiatrist would have to report child abuse for child protection reasons, the patient wouldn't expect the psychiatrist to report for criminal reasons.

Because the psychiatrist's testimony wasn't harmless -- the prosecution relied on it and the jury apparently had a question about it -- the court remanded the case for a new trial.

Related Resources:

• What You Reveal To a Psychotherapist May Go Further (The New York Times)
• No 'Self-Critical Analysis Privilege,' Says Ill. Supreme Court (FindLaw's U.S. Seventh Circuit Blog)
• Juvenile Offense Doesn't Make You a Career Criminal: 2nd Cir (FindLaw's U.S. Second Circuit Blog)
• Microsoft Appeals Order to Produce Emails Stored in Ireland (FindLaw's U.S. Second Circuit Blog)