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Court: society's interest outweighs friars' privacy interests in psychiatric records

Posted on October 1, 2010 by Dissent

Psychiatric or mental health records are among the most sensitive records anywhere and courts have routinely stood firm in protecting confidentiality of those records. In a case involving the sexual molestation of children by friars, however, a court has held that the compelling social interests in protecting children outweighs the friars’ privacy interests in their psychiatric records. Here’s the introduction from the opinion:

This consolidated appeal arises from lawsuits in which 25 plaintiffs sued defendant the Franciscan Friars of California, Inc. (the Franciscans) alleging they had been sexually abused by Franciscan brothers. In a settlement of the lawsuits, plaintiffs and the Franciscans asked the court to retain jurisdiction to determine if it was appropriate to publicly release confidential files of the alleged perpetrators, appellants Samuel Charles Cabot, Mario Cimmarusti, David Johnson, Gus Krumm, Gary Pacheco, and Robert Van Handel (the Individual Friars). We hold that compelling social interests in protecting children from molestation outweigh the Individual Friars? privacy rights, and the trial court correctly ordered the public release of psychiatric and other confidential records in the possession of the Franciscans.

Read the full opinion here. One of the issues before the court on appeal concerned the psychotherapist-patient privilege claimed by the individual friars. On that issue, the lower court had held that because the friars knew that their records would be shared with the Franciscans (who had sent them to the therapists), they essentially waived the privilege:

Moreover, the court found “the alleged perpetrators waived the privilege by attending the therapy treatments knowing that the information provided during the course of the therapy sessions would be shared with members of [the] Franciscan Friars. . . . The Operating Policies [and Procedures in the Santa Barbara Province for Friar Conduct] . . . clearly indicated that information relating to the alleged perpetrators? treatment and diagnosis would be disclosed to other members of [the] Franciscan Friars.” (Fn. omitted.)

On appeal, the court wrote:

It also makes no difference that the Individual Friars were told and believed their psychological records would be kept confidential. Their voluntary disclosure of these records to the Franciscans for purposes that were not reasonably necessary for diagnosis and treatment operated as a waiver of the privilege irrespective of what the Franciscans may have told the friars.

So even though the friars were not parties to the litigation between the plaintiffs and the Franciscans, and even though they may have been promised confidentiality by the Franciscans when they were sent to a therapist, their attempt to keep their records confidential failed because they had waived the privilege by going when they knew that the Franciscans would be given information about their treatment and diagnoses and because even if they had a reasonable expectation of confidentiality in their records, the state’s compelling interests trumped that privacy interest.

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