Is a Disclosure that Violates the Psychiatrist/Patient Privilege in an Act 21 Commitment Harmless Error?
In the Interest of J.M.G., 2018 WL 2274825, (Pa. Super. 2018) (unreported), allocatur granted Feb. 13, 2019, appeal docket 18 MAP 2019
J.M.G., a juvenile sex offender, was involuntarily committed pursuant to Act 21 of 2003, 42 Pa. C.S.A. §§ 6401-6409. Act 21 “establishes rights and procedures for the civil commitment of sexually violent delinquent children who, due to a mental abnormality or personality disorder, have serious difficulty in controlling sexually violent behavior and thereby pose a danger to the public and further provides for additional periods of commitment for involuntary treatment for said persons.” 42 Pa. C.S.A. § 6401.
On appeal from the trial court to the Superior Court, J.M.G. sought a new commitment hearing because the trial court erred in denying his motion for redactions of the documents prepared by the Juvenile Probation Office for submission to the Sexual Offender Assessment Board (SOAB). Under the holding in In the Interest of T.B., 75 A.3d 485, 497 (Pa. Super. 2013), before forwarding documents to the SOAB for an evaluation under Act 21, a trial court must redact all statements, evaluations, and summaries made for treatment purposes if “the juvenile was not represented by counsel and informed of his right against self-incrimination.”
Superior Court concluded that the trial court did indeed err in refusing the redactions requested and thereby disclosing to SOAB the privileged information, but that the error was harmless because the SOAB did not rely on the improperly disclosed information and because the Commonwealth’s expert did not rely on the information as a basis for his opinion that J.M.G. should be committed under Act 21:
…there are two independent bases to find the error here harmless. First, both experts (Dr. Stein for the Commonwealth and Dr. Foley for Appellant) agreed that Appellant had a mental disorder that made him predisposed to commit violent sexual acts. The only contested issue was suitability of the treatment center, which was not addressed in the materials improperly disclosed to the SOAB. So, no disputed factual determination turned on the improper SOAB disclosure. Second, Dr. Stein’s opinions on Appellant’s mental abnormalities and his likeliness to commit sexually violent acts if released into the community were not influenced by the documents improperly sent to the SOAB in unredacted form. Accordingly, we conclude that the trial court’s error in denying Appellant’s motion for more redaction was harmless.
Slip Op. at 12.
The Supreme Court has granted allocatur to determine if such a disclosure where the trial court violates the psychiatrist/patient privilege can ever be harmless error:
Where the trial court violates the psychiatrist/patient privilege of a minor who had previously been placed in a juvenile delinquency facility and ordered to participate in ongoing mental health treatment, and where the trial court allowed, over objection, statements made by the juvenile to his psychiatrist and/or psychologist to be provided to the Sexual Offender Assessment Board (SOAB) pursuant to an Act 21 civil commitment procedure, is the violation harmless error?