DIVISION OF CHILD ABUSE AND DOMESTIC VIOLENCE SERVICES
Department for Human Support Services
Cabinet for Health and Family Services



Protecting the Confidentiality of Mental Health Records in Civil and Criminal Litigation

Having gone through the trauma of domestic violence or sexual assault, victims are often in need of counseling or other mental health support to aid them in recovering from the crime. In such situations, mental health providers and victims both encounter the question of when client records will remain confidential from the prosecution or any lawsuit which may result from the attack. Kentucky's rules of evidence require that, in certain circumstances, clients' mental health records are confidential and privileged from disclosure during civil or criminal proceedings. In order for mental health providers and victims of sexual assault and domestic violence to ensure that client records remain confidential and receive the maximum degree of protection accorded by law, they must be aware of the rules of evidence regarding the privileges and the case law interpreting those rules.

KENTUCKY RULES OF EVIDENCE RELATED TO PRIVILEGED COMMUNICATIONS

Kentucky has two privileges contained in the Rules of Evidence which protect communications between victims (patients or clients) and their mental health providers:

Kentucky Rule of Evidence (KRE) 506 is the counselor-client privilege, which applies to certified school counselors, sexual assault counselors, certified professional art therapists, certified marriage and family therapists, certified professional counselors, individuals who provide crisis response services, and victim advocates (except those employed by a Commonwealth or county attorney). This rule states that:

"a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of counseling the client, between himself, his counselor, and persons present at the direction of the counselor, including members of the client's family." KRE 506(3)(b).

The definition of "confidential" as it relates to communications is if it "is not intended to be disclosed to third persons, except persons present to further the interest of the client in the consultation or interview, persons reasonably necessary for the transmission of the communication, or persons present during the communication at the direction of the counselor, including members of the client's family." KRE 506(a)(3). The privilege may be claimed either by the client or by the counselor on the client's behalf.

Notably, the privilege offered by KRE 506 is far from complete. First, it does not apply in cases where the client asserts his physical, mental, or emotional condition as an element of a claim or defense. Secondly, and most significantly for victims and mental health providers, the privilege which protects a record will not apply if the judge, in a civil or criminal proceeding, conducts a hearing and finds that:

1) the communication is relevant,
2) there are no available alternate means of obtaining the information, and
3) the need for the information outweighs the client's privacy interest.

In making the determination on whether to uphold the privilege, the judge may review the mental health records in camera., meaning that the judge will review those records in chambers and in private (i.e., the defense would not be able to see the records at that point).

KRE 507, the psychotherapist-patient privilege is a stronger privilege, since it contains no exception which permits the judge to abolish the privilege if the communication is found relevant. Included within the definition of "psychotherapist" are those who are licensed to practice medicine and engaged in the diagnosis or treatment of a mental condition; licensed or certified psychologists; licensed clinical social workers; and licensed registered nurses who practice psychiatric or mental health nursing. This rule states that:

"A patient, or the patient's authorized representative, has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis or treatment to the patient's mental condition, between the patient, the patient's psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family." KRE 507(b).

KRE 507's privilege does not extend to proceedings to hospitalize the patient for mental illness, on issues involving the patient's mental condition where the patient makes the communication during a court examination and has been informed the communication is not privileged, and in cases where the patient asserts his physical, mental, or emotional condition as an element of a claim or defense.

The strength of this privilege is evident from the Kentucky cases which have addressed it. In 1983, when examining the scope of the psychiatrist privilege, contained in a predecessor statute to KRE 507, the Kentucky Court of Appeals upheld the privilege and recognized the valid reasons for establishing such a privilege:

Confidentiality is essential if psychiatrists are to be in a position to successfully treat their patients. A thorough understanding of the patient's problems and feelings must be divulged if treatment is to be appropriate and effective. The legislature has seen fit to make such communications privileged. The privilege granted by KRS 421.215 is absolute in the absence of other legislated and recognized exceptions. . . It is not for this Court to take it upon itself to waive the privilege for someone or to carve out exceptions.

Amburgey v. Central Kentucky Regional Mental Health Board, Inc., Ky.App., 663 S.W.2d 952 (1983); see also Southern Bluegrass Mental Health and Mental Retardation Board, Inc., v. Angelucci, Ky., 609 S.W.2d 931 (1980).


CASE LAW RELATED TO PRIVILEGES

Despite the two privileges described above, some courts have been providing the defense with access to a victim's mental health records when they serve as a witness in a civil or criminal proceeding. The ruling of courts in this regard is based on the 1994 case of Eldred v. Commonwealth, Ky., 906 S.W.2d 696 (1994). In Eldred, a murder case, two witnesses were suffering from psychological problems which conceivably could have interfered with their ability to testify concerning the events they had witnessed. One witness, for example, suffered from total amnesia, and the other admitted to a drug addiction, which along with epilepsy and severe depression, had provided the basis for a social security disability claim. The opinion indicates that the Commonwealth did not urge either the privilege of KRE 506 or that of 507, since the court notes that "there does not appear to be any real dispute that appellant is entitled to discover medical or psychiatric records concerning a witness if certain prerequisites are met." Eldred, 906 S.W.2d at 701. In the Eldred case, the court held that the defendant was entitled to discover a witness' mental health history when that information is deemed relevant to a witness' credibility. In such cases, the court itself could subpoena the records and review them, releasing them to the defendant if the court deemed them relevant.

Subsequent to Eldred, however, the United States Supreme Court denied a defendant's right to access a victim's psychological records in Jaffee v. Redmond, 116 S.Ct. 1923 (1996). The Supreme Court held that federal courts would recognize a psychotherapist privilege, and in doing so, affirmed, in strong language, the importance of protecting communications between clients and psychotherapists. Noting that confidentiality "is a sine qua non for successful psychiatric treatment", the Court stated that a psychiatrists' ability to help her patients "is completely dependent upon [the patients'] willingness to talk freely. This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure ... patients of confidentiality." In contrast to the strong public good served by creating a privilege, the Court found that denying the privilege would give defendants only a "modest" evidentiary benefit. Since only a privilege would give patients the needed security to freely talk to their psychiatrists, the absence of a privilege would produce such a "chill" on patient communications to psychiatrists, that there would be little communication and therefore little discoverable evidence anyway. The Court noted that "this unspoken 'evidence', will, therefore serve no greater truth-seeking function than if it had been spoken and privileged." Jaffee, at 1929.

A recent order, issued by Judge William Mains in a Rowan Circuit rape case, has direct impact on the protection of victims' records. In the case of Commonwealth v. Buttz, the defendant filed a discovery motion with Judge Mains, requesting the mental health records of the victim. At the hearing on the motion, the victim appeared and objected to disclosure of those records, relying upon KRE 507. Judge Mains noted the scope of the privilege of KRE 507, the holding in Eldred, and the language of the Supreme Court in Jaffee which "said in unequivocal terms that communications between a licensed psychotherapist and her patient in the course of diagnosis or treatment are protected from compelled disclosure."
Judge Mains then denied the discovery motion for the records, holding:

In this case, the complaining witness has chosen to exercise her privilege. Under Jaffee, this Court is of the belief that it has an obligation to respect such privilege due to the close similarity between the Federal and State rules. Eldred is not applicable since the complaining witness has chosen to exercise the privilege. Buttz Order of April 8, 1997 at 2.

Karen Quinn
Legal Counsel
Governor's Office of Child Abuse
and Domestic Violence Services

Carol E. Jordan, M.S.
Executive Director
Governor's Office of Child Abuse
and Domestic Violence Services