Sunday, May 12, 2013

Attorney-client privilege trumps child abuse reporting law, court rules

Elijah W. ruling clarifies thorny issue in California


Forensic psychologists are split as to whether we must breach confidentiality when a criminal defendant divulges child abuse or threatens physical harm to others.

On the one hand, here in California a psychologist can be criminally prosecuted under the Child Abuse and Neglect Reporting Act (CANRA) for failure to report suspected child abuse. On the other hand, a psychologist hired as a defense consultant assumes a legal duty to maintain attorney-client confidentiality.

But a welcome appellate ruling this week at least partially resolves this vexing dilemma. A psychologist hired by a criminal defense attorney is bound by the same rules as the attorney, and must uphold the client's Constitutional right to confidentiality rather than report child abuse, the court held.

"In the absence of clear legislative guidance, we decline to read into CANRA [the Child Abuse and Neglect Reporting Act] a reporting requirement that contravenes established law on confidentiality and privilege governing defense experts and potentially jeopardizes a criminal defendant’s right to a fair trial," ruled the Second Appellate District.

The question of whether, or how, to report threatened violence (as mandated under Tarasoff and related case law) remains a bit vaguer; in some cases, warning the retaining attorney might discharge the duty to protect, but in other cases it might not. 

The appellate ruling also does not clarify the reporting requirements of psychologists retained by litigants in child custody or civil cases. However, an attorney colleague said it likely extends to any situation in which the psychologist is hired to consult on a privileged matter, such as in civil or child custody cases. The colleague's opinion was based in part on the fact that the court specifically declined to decide the issue on Constitutional grounds, basing its decision instead on California laws regarding attorney-client privilege. In contrast, under California's Evidence Code (Section 1017), there is no privilege if the expert is appointed by the court as a neutral expert. Also, if the psychologist shifts from the consultant role to become a testifying expert, once-privileged information is no longer protected.

The ruling is good news for forensic practitioners in that it reduces the ethical tension between protecting the privacy rights of the accused and protecting our own skins. Psychologists who fail to report suspected child abuse may be subject to criminal and civil penalties and are often treated very harshly by licensing boards.

The ruling puts California in the lead among U.S. states in clarifying psychologists' duties in navigating a confusing mishmash of reporting laws. Maryland is an exception to the general vagueness; that state's Attorney General issued an opinion that defense-retained psychiatrists in criminal cases are exempt from mandated reporting.

Judge had nixed child's request for independent expert

The case involved Elijah W., a 10-year-old Los Angeles boy arrested on an arson charge. When the defense team requested an expert to help prepare the fourth-grader's defense, the juvenile judge limited them to a member of the local juvenile competency to stand trial (JCST) panel. However, panel members had told Elijah's attorneys that they would report to authorities any information that Elijah revealed about suspected child abuse or neglect.

In contrast, a member of the local superior court's regular panel of psychiatrists and psychologists, Dr. Catherine Scarf, had assured the defense team she would respect attorney-client privilege and only report threats or child abuse to Elijah's counsel. The judge refused to appoint Dr. Scarf, scoffing at the defense team's concerns as "merely academic" because the judge could not recall any juvenile disclosing reportable information during a competency evaluation. 

Los Angeles created the juvenile panel in response to a recent California law mandating that juvenile competency evaluators have special training and experience in child development and juvenile forensic issues. The Los Angeles court's juvenile protocol allows a minor's defense counsel to obtain an assessment and not disclose it unless a doubt is declared as to the minor's competency. 

Elijah's attorney argued that appointment of a defense expert who would not defer to lawyer-client privilege violated Elijah's Constitutional right to effective assistance of counsel.

The appellate court agreed, noting that child abuse reporting requirements might interfere with full and open communication between a minor and his defense team.
"It is certainly plausible, for example, that a young child accused of setting fires is acting out following some form of traumatic experience, perhaps even child abuse…. Similarly, if the child is warned of the defense psychologist's intention to disclose information concerning child abuse or neglect prior to the assessment ... disclosures necessary for effective representation may be inhibited."

The appellate court also considered whether the attorney-client privilege trumps the so-called Tarasoff warning, or psychologists' duty to protect reasonably identifiable victims from threatened violence. The justices wrote favorably of Dr. Scarf's position that notifying the defense attorney would discharge the duty; in California, an attorney may reveal confidential information if necessary to prevent a criminal act likely to result in death or great bodily harm:
"We cannot evaluate in advance whether Dr. Scarf's intended notification of Elijah's attorney will insulate her from liability in any particular situation…. But her position is certainly reasonable, and her willingness to safeguard the confidentiality of Elijah's communications at the risk of personal liability should not have been discounted by the juvenile court."

Bottom line: The appellate court ordered that the juvenile court approve Dr. Scarf's appointment.

Practical implications

Forensic psychologists in California will want to carefully review this ruling for themselves, and tailor their consent forms based on the nature of the case and who the client is -- the court, the defense, or the prosecution. In preparing one's informed consent documents, consulting with an attorney knowledgeable in this tricky area is certainly not a bad idea.

Likewise, the case serves as a reminder for practitioners outside of California, who should determine the relevant statutes and case law in the jurisdictions in which they practice. In their book Evaluation for personal injury claims, Kane and Dvoskin opine that in jurisdictions in which attorneys are mandated to report child abuse, expert consultants likely must report as well. (The American Bar Association has an online chart listing state-by-state laws pertaining to attorneys' child-abuse reporting requirements.)

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The published case, Elijah J. versus Superior Court of Los Angeles County, is online HERE

Related resources available online include: 
 
Hat tip: Adam Alban, PhD, JD

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