February 4, 2011

Parolees retain right to confidential therapy, court holds

"The SVP Act does not include its own special exception"

Ramiro Gonzales had no idea how far the news would travel, when he confided to his therapist that he had molested more children than those for which he had been convicted and served time in prison.

After all, confidentiality is the cornerstone of psychological treatment. Would you disclose information in therapy if you thought your darkest thoughts and most shameful misdeeds would be trumpeted to the world?

But in response to a subpoena, Mr. Gonzales's therapist handed over his entire treatment record to a prosecutor who was seeking to civilly detain him as a sexually violent predator (SVP), after a judge overruled a defense objection. The government's two psychologists then used the damaging admissions to bolster their trial testimony about future dangerousness, and a jury voted to civilly commit him.

Not so fast, an appellate court ruled last week. "The SVP Act does not include its own special exception" to established rules of patient-therapist confidentiality. Just like everyone else, a parolee is entitled to expect confidentiality in therapy, except as necessary to keep parole authorities informed about whether he is complying with any mandatory treatment requirements. Such information, the court added, must be as minimal as possible, and certainly does not include details of therapy or statements made in therapy.

Mr. Gonzales's admission was so highly prejudicial that the civil commitment must be overturned and he must get a new trial, the appellate court ordered, especially since the government's case overall was "not compelling." There was no evidence that he had molested any children since paroling from prison.

Mr. Gonzales, who is developmentally disabled due to spinal meningitis as a boy, was required to be in treatment as a condition of his parole. The state had already tried to civilly commit him upon his initial parole from prison, but a jury rejected that attempt. It was trying for the second time, after he violated parole by drinking alcohol and being around children, including his sister's children when they came over to visit his mother, where he lived.

The court clarified that people who have been civilly committed, as well as prison inmates, cannot expect the same level of privacy in therapy as parolees or probationers, because they have been found to be dangerous.

The ruling is good news for psychology ethics. Too many therapists seem to harbor the misimpression that a contract with a parole or probation agency trumps our professional ethics codes, giving them carte blanche to discuss their client's confidential business with authorities.

This ruling should serve as a vivid reminder: A subpoena is just a piece of paper filled out by an attorney. You aren't supposed to blindly obey it when it is improper. Indeed, you have an obligation to actively resist turning over confidential records of therapy. The therapist in this case should have voiced an objection, and brought her own attorney to court to fight the subpoena.

The case, People v. Ramiro Gonzales out of Santa Clara County, gives an excellent overview of both federal and California case law on confidentiality in forensic cases. It is online HERE.

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