Mental Health Providers & Privilege: What You Need to Know (Part 3)

Our last post highlighted the laws and privileges between mental health professionals and their patients. The privilege is unavailable to exclude evidence relating to child abuse, neglect and dependency. However, this exclusion raises two issues: (1) whether sexual contact between minors falls within the meaning of abuse, neglect, or dependency under § 7B-301, and if so, (2) whether information not related to the abuse, neglect or dependency is admissible.

There is little appellate case law that addresses sexual contact between minors, so it is necessary to examine the statute. Abuse occurs when enumerated sexual crimes such as rape, statutory rape, forcible sexual offense, and incest are committed or allowed by a parent, guardian, or caretaker. Specifically, a caretaker is defined as “any person other than a parent, guardian, or custodian who has responsibility for the health and welfare of a juvenile in a residential setting.” This can include a babysitter or another adult charged with care. Neither the definition of caretaker nor responsible individual makes specific mention of juveniles under the age of eighteen. Therefore, it is not clear that the statutory definition intends to encompass sexual acts between minors. Only sexual contact committed by an adult in a supervisory role would qualify as abuse.

However, the statute does not limit the definition of abuse and neglect to physical sexual acts. In fact, the statute includes broader descriptions of conduct equaling abuse or neglect. For example, a child is neglected if the child lives in an environment injurious to the child’s welfare. The courts determine whether such an injurious environment exists by clear and convincing evidence.

An argument should be made that information contained in the sex offender specific evaluation is part of treatment, and thus, privileged. There is a strong interest in promoting confidence and trust between psychotherapists and their patients. Jaffee v. Redmond, 518 U.S. 1, 10 (1996). Relevant information offered to a counselor, or psychotherapist, as part of treatment or services should be privileged.

However, the reporting statute for abuse and neglect creates the duty to report when an individual has “cause to suspect” abuse or neglect. “Cause to suspect” is not defined and false reporting is not addressed in the statutes. Because of this language, most mental health practitioners report potential abuse and leave the factual determinations for DSS or law enforcement.

Furthermore, judges may easily override the privilege if they determine disclosure is necessary to a proper administration of justice. Most cases allow damaging evidence to be admissible when relevant. However, the public policy benefit, combined with the U.S. Supreme Court’s caution of using this information during sentencing, may persuade a judge at adjudication or disposition to exclude certain portions of the communication.

The evidence pertaining to the abuse or neglect of a child is not privileged. However, attorneys should file a motion in limine to exclude all other communications as privileged under § 8.53.3. At the adjudication hearing, attorneys should object to the disclosure of information under § 8-53.3. The patient (or respondent) bears the burden of establishing the existence of the privilege, and failure to object constitutes waiver. Mims v. Wright, 157 N.C. App. 339, 342 (2003). The judge may determine disclosure is proper for the administration of justice. Should the judge do so, the attorney must renew the objection to preserve the issue on appeal.

Also, the attorney should determine whether the counselor advised the juvenile of his confidentiality rights and that certain admissions must be disclosed. Failure to properly advise a juvenile client of confidentiality weighs against the therapist. A situation where a court ordered counselor or therapist completely failed to advise the juvenile of this information could be grounds for a motion to suppress under the Fifth Amendment.

Mental health professionals are provided with guidelines concerning confidentiality, its limits, and roles when providing services. By law, counselors are required to notify their patients of mandatory disclosures. Failing to do so triggers a professional and ethical violation for both counselors and psychologists. Although waiver and disclosure are common, the statute coupled with physician and counselor ethics favors nondisclosure. Therefore, attorneys should generally object to sharing information between their clients and mental health professionals with the court.

Finally, unlike many jurisdictions, North Carolina does not follow a duty to warn third parties of harm. As a result, only extreme circumstances or abuse and neglect should justify a mental health professional disclosing information shared by the patient to authorities or potential victims.

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This is the final post in our series of three posts discussing mental health evaluations, privilege, and juvenile clients. Thank you again to our summer legal intern, Evan Lee for all his great work on this topic!

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