Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

May Statements Made To My Psychiatrist Be Disclosed In A N.J. Child Custody Case?

            Yes if the statements, which would usually be confidential, would allow the lawyers and the judge in the case to best protect the child’s welfare.

            In State v. Snell, father John R. Snell appealed from an order of the Superior Court of New Jersey, Law Division of Mercer County that held that his statements to his psychiatrist in which he admitted to child abuse were properly reported to the Division of Youth and Family Services, under New Statute 9:6-8.10, and admissible at trial. John argued that is was not proper for the psychiatrist to disclose that information. The nature of the psychotherapeutic process required John to fully disclose his most intimate thoughts to the therapist, and so confidentiality was vital. However, such a privilege of confidentiality can be defeated when common notions of fairness compel, at the very least, limited disclosure of confidential communications. The New Jersey Appellate Division held that the protection of children from abuse through the statutory reporting requirement cannot be blocked by asserting a blanket testimonial privilege. Therefore, the appellate panel affirmed the trial court’s holding that his statements to his psychiatrist were properly reported to the New Jersey Appellate Division, but held that the trial court could not compel the psychiatrist to testify at the criminal trial.

            The main issue in Snell, was whether the privilege against disclosure of confidential communications made between a patient and physician, is second to the requirement imposed under New Jersey Statute 9:6-8.10 on “any person” to report evidence of child abuse to the Division of Youth and Family Services. The trial court had held that John’s psychiatrist properly reported the evidence of child abuse to the Division of Youth and Family Services, and could furnish testimony at his trial.

            As a result of the psychiatrist’s report, the Division of Youth and Family Services notified the Trenton Police Department. Consequently, John was arrested and indicted. John then pled guilty to aggravated sexual assault, which is a first-degree offense. As part of his plea deal, John reserved the right to appeal the trial court’s evidentiary ruling.

            On appeal, John argued that his admission of child abuse to Dr. Philip Torrance, a psychiatrist, was privileged, and alternatively, he should not have been committed to the Adult Diagnostic  and Treatment Center at Avenel in the first place.

            Fifty-nine year old John was in a long-term relationship with a woman who had two granddaughters, eleven year old K.M. and ten year old S.M. Because of safety concerns, the Division of Youth and Family Services removed S.M. from the mother’s home and placed her with her grandmother. K.M. who lived close by in Trenton would come to visit from time to time. Both of the children thought of John as a substitute grandfather. However, it was revealed that over the course of more than one year, John performed cunnilingus on them numerous times. John claimed that his intent was to educate the children so they would not become sexually involved with boys.

            John eventually told the children’s grandmother of what he had been doing, who demanded that he see a psychiatrist for treatment. During the consultation with Dr. Torrance, John informed the doctor that he had performed one act of cunnilingus on each of the two girls. At the end of the session, Dr. Torrance reported the evidence of child abuse to the Division of Youth and Family Services, in accordance with New Jersey Statute 9:6-8.10.

            Patient-physician privilege is enumerated in New Jersey Statute 2A:84A-22.1 to -22.7, which states that any information that a physician or patient is obligated to report to a public official is not privileged. The New Jersey Appellate Division found this language to sufficiently waive privilege only in relation to the requirement of making an initial report to a public official. As such, a complete waiver of the privilege only occurs in limited circumstances where the patient’s condition is an element of a claim or defense made by the patient, or through any party claiming under the patient.

            While Dr. Torrance is a physician, John tried to avoid the aforementioned exception to the physician-patient privilege by relying on New Jersey Statute 45:14B-28 and New Jersey Rule of Evidence 505 instead, which both enumerate the psychologist privilege and do not contain any exception where reporting to a public official is required. He claimed that he went to Dr. Torrance’s office for help in the form of psychotherapy, not for medical treatment, and as such, the psychologist privilege should apply instead of the physician privilege.

            John argued that the specific language of neither New Jersey Statute 45:14B-28, nor New Jersey Rule of Evidence 505 established an exception that is applicable when State law mandates the reporting to a public agency.  The State on the other hand argued that by putting the psychologist privilege on the same level as attorney client privilege, the State Legislature’s intended  Dr. Torrance’s report to the Division of Youth and Family Services to be free of the psychologist confidentiality privilege. By analogy, a lawyer-client privilege does not cover a communication “sought or obtained in aid of the commission of a crime or a fraud.” The psychiatrist stated the nature of the family like relationship between John and the children made it incredibly likely that John could continue to commit the acts of abuse. As such, the State argued that the psychiatrist, who was subject to a limited privilege analogous to that of an attorney, was obligated to make the report to the Division of Youth and Family Services, under the crime or fraud exception.

            Even though the New Jersey Appellate Division agreed with the State’s conclusion that Dr. Torrance had a duty to report the abuse, they did not agree that John’s consultation with the psychiatrist was analogous to a client seeking an attorney’s aid in the commission of fraud or a crime. The appellate panel found that John consulted with the psychiatrist to get treatment so that he would not commit further acts of child abuse, not to seek help in the commission of further acts of abuse.

            The purpose of privileged information is to encourage honest and candid communication between a psychotherapist and patient, physician and patient, and client and attorney. This is because of the principle that a patient or client should receive a proper diagnosis and treatment or informed legal advice. With that said, the New Jersey Appellate Division noted that they acknowledge that all privileges have to be strictly construed, because they might conflict with the preservations and promotion of truth, fair dealing, and justice. As such, a court must strike a balance between the privilege against disclosure enumerated in New Jersey Statute 45:14B-28, and the reporting obligation enumerated in New Jersey Statute 9:6-8.10.

            Its is well established, as a matter of statutory construction, that when two statutes are in conflict, the statute that is more specific must prevail over the statute that is more general. New Jersey Statute 9:6-8.10, the law demanding the reporting of suspected child abuse, is much more specific and particular than the rule and statute relating to confidential communications. The New Jersey Appellate Division held that the specific public policy behind New Jersey Statute 9:6-8.10 had to have priority over the public policy supporting psychologist privilege. Protecting children from harm, injury or abuse through the statutory requirement of reporting can not be hindered by the assertion of a blanket testimonial privilege. The New Jersey Appellate Division made sure to note however, that the law only requires reporting to the Division of Youth and Family Services to protect children in danger, otherwise the privilege remains intact.  Therefore, the appellate panel held that Dr. Torrance’s report to the Division of Youth and Family Services was proper, but the State could not compel him to testify about the privileged communication at John’s criminal trial. Finally, the New Jersey Appellate Division agreed with the trial court that John was a compulsive and repetitive sex offender, and his commitment to Avenel Adult Diagnostic and Treatment Center for concurrent terms of eighteen years was justified.