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Attorney work product privilege trumps mandated child abuse reporting law: The case of Elijah W. v. Superior Court
International Journal of Law and Psychiatry 42-43 (2015) 43–48
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International Journal of Law and Psychiatry
Attorney work product privilege trumps mandated child abuse reporting law: The case of Elijah W. v. Superior Court Craig R. Lareau ⁎ Private Practice, Los Angeles, CA, USA
a r t i c l e
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Available online 26 September 2015 Keywords: Mandated reporting Child abuse and neglect Tarasoff duty attorney-client privilege Attorney work product
a b s t r a c t Forensic psychologists and psychiatrists are licensed in their respective professions, but they perform most of their work with attorneys in the legal arena. Both attorneys and mental health professionals place high value on confidentiality of information, reflected in the ethics of their professions and codified into laws governing their work. In psychology and psychiatry, there are some well-known exceptions to confidentiality; two primary exceptions include the mandated reporting of suspected child abuse and various “Tarasoff” duty to warn or protect laws. Generally, however, the corresponding duty for attorneys to report suspected child abuse or to warn or protect intended victims of threatened harm is not as extensive. This difference in mandated reporting responsibilities can create significant difficulties when attorneys need to retain forensic psychologists and psychiatrists to evaluate their clients, especially in criminal contexts. If the retained psychologist or psychiatrist is required to report suspected abuse or threatened harm, the attorney may be harming his or her client's legal interests by using the forensic psychologist or psychiatrist to evaluate his or her client. This article will briefly review the development of mandated reporting laws for psychologists and psychiatrists and juxtapose those with the legal and ethical requirements of confidentiality for attorneys embodied in the attorney–client privilege and attorney work product privilege. The article will then discuss the California Court of Appeals case in Elijah W. v. Superior Court, where the court addressed the issue of whether retained mental health professionals must report suspected child abuse and threatened harm to others as required by law or if they do not need to report because they come under the umbrella of the attorney work product privilege. This California court ultimately concluded that retained psychologists and psychiatrists work under the attorney work product privilege and are not required to comply with mandated reporting laws and “Tarasoff” duties. © 2015 Elsevier Ltd. All rights reserved.
1. Introduction Confidentiality forms the foundation for both the practice of psychology and the practice of law. The ethics codes of the mental health professions and the legal profession emphasize the inviolability of confidentiality as the sine qua non of the standard of care. Breaches of confidentiality are almost always ethical violations and can serve as the basis for attacks on the practitioners' licenses. Notwithstanding the importance that confidentiality serves in both psychology and law, the value the respective professions place on confidentiality is not coterminous. Two areas where this is seen are in the treatment of suspected child abuse and Tarasoff situations. In all jurisdictions, mental health professionals are mandatory reporters of suspected child abuse, and in many jurisdictions, mental health professionals have a duty to warn or protect when a patient makes a serious threat of harm against an identifiable potential victim. In more than half of the states, attorneys are expressly exempted as mandatory reporters of suspected child abuse,
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and in no jurisdiction must an attorney breach confidentiality to protect an identifiable third party from threatened harm. Serious problems can arise in forensic contexts where psychologists and psychiatrists are retained by attorneys. In those jurisdictions in which reporting responsibilities differ between attorneys and their retained forensic psychologists and psychiatrists, what should the forensic psychologist or psychiatrist do when faced with a situation involving suspected child abuse or a Tarasoff-like situation? Does the forensic mental health professional breach confidentiality and report and in the process potentially harm the attorney's client? Or, does the forensic mental health professional maintain confidentiality under the umbrella of the attorney's reporting responsibilities and thereby risk the legal consequences of violating the reporting laws and their legal duties? This article will first briefly review the ethical and legal foundations of confidentiality and privilege for psychologists and for attorneys. Then the article will discuss the topics of mandated reporting of suspected child abuse and the Tarasoff duty to warn of or protect from threatened harm and will juxtapose the differences between mental health professionals and attorneys regarding these mandatory breaches of confidentiality. Next, the article will highlight the problematic issue
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of mandated reports with forensic psychologists and psychiatrists retained by attorneys to evaluate clients in legal cases. Finally, the article will discuss the California Court of Appeals case of Elijah W. v. Superior Court, in which the court squarely addressed the issue of mandated reporting for forensic psychologists retained by the defense in criminal and juvenile cases.
doctrine also protects things and information generated by others on behalf of an attorney from disclosure, provided the material was generated in anticipation of litigation (Dostart, 2006). Work of forensic psychologists and psychiatrists retained by attorneys to evaluate their clients falls under the work product doctrine. 3. Mandated reporting of suspected child abuse
2. Confidentiality and privilege Regarding the fundamental role that confidentiality plays in the process of psychotherapy, the United States Supreme Court in Jaffee v. Redmond (1996) stated, “Effective psychotherapy … depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.” (p. 10). Standard 4 of the Ethical Principles of Psychologists and Code of Conduct (EPPCC) (American Psychological Association, 2010) is titled “Privacy and Confidentiality” and contains seven enforceable code sections related to privacy and confidentiality of patient information. The section also clarifies the limited conditions under which confidentiality and privacy can be breached. Similarly, Section 4 of the code of ethics for psychiatrists (American Psychiatric Association, 2013) contains 11 code sections describing privacy and confidentiality and the specific circumstances under which they may be breached. The fundamental role of confidentiality and privacy in the mental health professions cannot be gainsaid. Without protections of confidentiality and privacy, it is unrealistic to believe that many people in need of mental health services would voluntarily seek them out. Confidentiality is so important to the provision of effective psychotherapy that all state courts and the federal courts have created psychotherapist–patient privileges to prevent confidential information from being revealed in legal proceedings except in limited circumstances (Jaffee v. Redmond, 1996). Confidentiality and privacy are arguably even more important to the attorney–client relationship than they are in psychotherapist–patient relationship. As of the early 1700s, the common law of England had recognized the need for attorneys to protect client confidences for the benefit of the client (Green, 2004). The Model Rules of Professional Conduct (MRPC) by the American Bar Association (2013), which serves as the ethical code for attorneys in all states except California, places a high value on confidentiality of client communications. MRPC 1.6, titled “Confidentiality of Information,” states that attorneys do not reveal information related to the representation of a client except in limited circumstances provided in other sections of the rule. The attorney–client privilege, which made its way into American law by the 1820s (Green, 2004), prevents client confidences from being revealed in legal proceedings, which encourages full and frank conversations between clients and their attorneys. This allows attorneys to develop the factual background of a case and sift through the legally relevant information without concern that the information provided by the client could be used to the client's detriment (Lockie, 2006; Upjohn Co. v. United States, 1981). Closely related to the attorney–client privilege is the attorney work product doctrine. Under the work product doctrine, tangible things and information collected or prepared by an attorney or an agent of an attorney in anticipation of litigation are protected from compelled disclosure, absent compelling need by the opposing side. The doctrine was recognized by the United States Supreme Court in the case of Hickman v. Taylor (1947) and was approved in a criminal law context in United States v. Nobles (1975). The work product doctrine is broader than the attorney–client privilege, which protects only confidential communications between attorney and client. The work product
It was not until the 1960s that the phenomenon and extent of the problem of child abuse and neglect entered the collective consciousness in the United States (Besharov, 1978). Societal response to these concerns moved quickly, and by 1967 every state in the country required certain professionals to reports suspected abuse or neglect to a local child protection agency (Mosteller, 1992). The purpose behind mandated reporting laws was not to protect the rights of children but rather to permit agencies of society to protect children who generally are not seen as being able to protect themselves (Marrus, 1998). Notwithstanding the intent of these laws at the state level, in practice, these laws throughout the 1960s and early 1970s added levels of bureaucracy and diffusion of responsibility that often did not succeed in their goals of protecting children (Besharov, 1978). In 1974, the Child Abuse Prevention and Treatment Act (CAPTA) was signed into law (U.S. Department of Health and Human Services, 2010). The law made federal funding contingent upon the enactment of state-level child abuse reporting statutes and the development of related procedures and programs. Soon thereafter, a new model child abuse reporting statute was released that provided guidance for complying with federal requirements. The model statute specifically identified professionals required to report abuse, which intentionally did not include attorneys. Also, the model statute abrogated all privileges except for the attorney–client privilege (Mosteller, 1992). Presently, all 50 states, the District of Columbia, and the U.S. territories have statutes requiring the reporting of known or suspected child abuse to child protective services agencies or law enforcement (Child Welfare Information Gateway, 2013). All but two states enumerate specific professional groups as mandated reporters; in those states, all persons are required to report. The most common professional groups designated as mandated reporters are as follows: mental health professionals; social workers; teachers and school personnel; physicians, nurses, and health care workers; child care providers; medical examiners or coroners; and law enforcement officers. In 18 states, any person who suspects child abuse or neglect is required to report; this includes attorneys. In only two states are attorneys specifically included in the list of mandated reporters. In most states, the relevant statutes delineate which privileged communications are abrogated by the requirement to report child abuse and which privileges are affirmed. The physician–patient, psychotherapist–patient, and husband–wife privileges are most commonly denied, while the attorney–client privilege is most commonly affirmed (Child Welfare Information Gateway, 2013). Thus, if all persons are required to report but the attorney–client privilege is affirmed, attorneys do not need to report when otherwise reportable information is provide from a client in the course of the attorney–client relationship. Although the circumstances vary for when a mandatory reporter must make a report, typically the triggering event is when a reporter suspects or has reason to believe that a child has been abused or neglected. Another common triggering circumstance is when the reporter has knowledge of or observes a child being subjected to conditions that would reasonably result in harm to the child. Generally the statutes contain similar requirements for the content of a mandated report. These include the following: who must report, what must be reported, to whom a report must be made, and when a report must be made (Hall, 2006). The statutes also commonly provide for three types of liability provisions: (1) immunity from civil and criminal liability for a report, (2) criminal liability for failure to report by a mandated reporter, and (3) criminal liability for making a false report (Small, Lyons, & Guy, 2002).
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4. Tarasoff duties to warn and/or to protect In 1976, the California Supreme Court decided Tarasoff v. Regents of the University of California. In the decision, the Court held, “When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances” (Tarasoff, 1976, p. 431). The particularity of the threatened harm necessary to trigger the duty to protect varies between jurisdictions, and mental health professionals must be familiar with the requirements of the duty, if any, in their states. In the years since the Tarasoff decision, 33 jurisdictions have enacted their own versions of Tarasoff, 11 permit warnings at the discretion of the therapist, and only 7 have not addressed the issue (Bersoff, 2014). The Tarasoff decision was limited in scope to threats constituting a serious danger of violence to another in a psychotherapeutic context; attorneys do not have a similar duty to protect others from threatened violence by their clients. Nevertheless, the Model Rules of Professional Conduct contemplates a potential breach in confidentiality when the client of an attorney threatens imminent and serious harm to another. MRPC 1.6(b)(1) states, “(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm.” The confidentiality breach is discretionary when the attorney believes his or her client is about to kill or seriously injure another person; there is no mandate to breach confidentiality in such a situation. 5. Differences in reporting duties between mental health professionals and attorneys This article is limited in its focus to mandated reporting of child abuse and neglect and Tarasoff-like duties that arise in the professional work of mental health professionals and attorneys. There are other situations in which mental health professionals are required or permitted to breach confidentiality (e.g., elder abuse, danger to self). There also are other circumstances in which an attorney may breach confidentiality (e.g., to prevent the client from using the attorney to commit crime or fraud, to defend oneself in a controversy with a client). As can be seen from the information above, in many jurisdictions, mental health professionals are mandated reporters of child abuse and neglect where attorneys are not mandated reporters. Similarly, in at least 33 states, mental health professionals have a duty to warn or protect third parties from threatened serious danger of harm from their clients, whereas attorneys are simply permitted to breach confidentiality only in the most extreme cases of potential violence. Most often these differences in mandated reporting and Tarasoff-type duties between mental health professionals and attorneys do not present any problems; mental health professionals follow their reporting requirements with their patients and attorneys follow their reporting requirements with their clients. In most cases, “never the twain shall meet.” Even in cases in which a therapy patient also is the client of an attorney, the differences in reporting responsibilities does not present a conceptual problem; the various professionals report or preserves confidentiality as required by their professional ethics and state laws. 6. Unique concerns for mandated reporting for forensic psychologists and psychiatrists Forensic psychologists and psychiatrist who perform evaluations of psycholegal issues with parties to different legal disputes can work in
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a variety of contexts. They may work for agencies (e.g., state hospitals, court clinics, correctional settings) in which they are retained by neither the court nor an attorney. Others may be private practitioners who work by themselves or in some partnership or firm and perform courtappointed evaluations for the court or for the prosecution. Still others may be privately retained by criminal defense attorneys or civil litigation attorneys to evaluate the clients of the attorneys. Following the ethics of their professions, all strive to perform objective and unbiased evaluations to provide useful information to answer the relevant psycholegal questions. When a forensic psychologist or psychiatrist is not retained by a criminal defense attorney or a civil litigation attorney to evaluate a client, there should be no dilemma about what to do when he or she is faced with a mandatory reporting situation or Tarasoff situation that arises in the course of the evaluation with the patient or client. The forensic psychologist or psychiatrist makes the mandatory report or complies with his or her Tarasoff duty. Arguably, the decision in such a case is more straightforward than if it occurs in the course of psychotherapy with a treatment provider because with an objective forensic psychologist or psychiatrist, there is little concern about the disruption of the therapeutic alliance that could be caused by making the report, and the psychotherapist–patient privilege does not apply. Despite the clarity under the law in a mandated reporting or Tarasoff situation for treating psychotherapist, some research suggests that appreciable percentages of psychotherapists do not make mandated reports in part out of concern for the potential damage to the therapeutic relationship (Kalichman & Brosig, 1993). The situation can be quite different when the forensic psychologist or psychiatrist is retained by an attorney to perform a confidential evaluation of the client. This occurs most often with criminal defense attorneys and plaintiffs' attorneys in civil cases. In those circumstances, the attorney is seeking an evaluation that may be useful in the case but usually realizes that the results of the evaluation may not be helpful; if not helpful, the attorney often will ask the forensic psychologist or psychiatrist to not write a report, and the evaluation does not become part of the case, “hidden” as attorney work product. What most attorneys are not anticipating is that the evaluation may end up harmful to the client due to the psychologist's or psychiatrist's independent responsibility as a mandated reporter of child abuse or a duty to protect under Tarasoff. At the heart of the issue when a forensic psychologist or psychiatrist is retained by an attorney to perform a confidential evaluation and he or she learns of information that meets criteria for a mandatory report or a Tarasoff duty is the concept of agency. When performing a confidential forensic evaluation when retained by an attorney, is the psychologist or psychiatrist working as an independent professional or an agent of the attorney? Most commentators who have addressed this issue have argued that the forensic psychologist or psychiatrist is acting as an agent of the attorney and therefore is subject to the attorney's mandatory reporting requirements (Dixon & Dixon, 2006; Hall, 2006; Niland, Morgan, & Golding, 2004), although others have been more undecided (Kapoor & Zonana, 2010). While conceptually an agency theory makes sense, ultimately it is a legal conclusion about whether forensic psychologists and psychiatrists are acting as agents of a retaining attorney when performing an objective forensic evaluation. Notwithstanding the attorney's and psychologist's decision about whether the psychologist should follow the attorney's reporting responsibilities or his/her profession's reporting responsibilities, that decision will not be binding upon a profession's ethics board, a criminal court, or a civil court in the event of an unfortunate consequence. Of course, in those jurisdictions in which the reporting responsibilities of mental health professionals and attorneys are the same, this is largely a moot issue. However, in many states this issue can arise, and how to handle it is a matter of debate and strategy (Hall, 2006; Kapoor & Zonana, 2010). Hall (2006) offers several suggestions of how
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to navigate “the reporting versus privilege dilemma.” She suggest to first turn to the profession's ethics codes for guidance, and to use consultation, professional legal advice, discussions with the retaining attorney, and perhaps a judicial ruling to determine the scope of one's reporting duties in a given situation. The psychologist should then determine whether she is considered an agent of the attorney; if not, she would follow the requirements of the reporting law as related to psychologists. If she does come under the purview of the attorney–client privilege, the psychologist must become knowledgeable about an attorney's reporting responsibilities under the state's privilege law through consultation. Hall further recommends that psychologists be explicit with retaining attorneys regarding their positions about mandatory reporting at the outset of the engagement, and to include a written agreement prior to accepting the referral. Lastly, Hall recommends providing clear informed consent notification to the client evaluated about the psychologist's reporting responsibilities.
confidentiality concern by reasoning the issue had never arisen in the past. The court also rejected the argument that a psychiatrist or psychologist could properly refuse to follow the mandated reporter law to disclose abuse or neglect to a child protection agency or other appropriate authority. The trial court judge wrote, “[T]he notion that the mandated reporting duty would be satisfied by reporting potential abuse only to the minor's attorney would frustrate the purpose of the mandated reporting law for the simple reason that the minor's attorney is not a mandated reporter.” 7.2. Procedural history
In 2013, the California Court of Appeals heard a case that squarely addressed the issue of mandated reporting for forensic psychologists when they are retained by criminal defense attorneys (Elijah W. v. Superior Court, 2013). The case involved California's mandatory child abuse reporting law, The Child Abuse and Neglect Reporting Act (CANRA) (2012).
On May 7, 2012, Elijah petitioned the Court of Appeals for a writ of mandate directing the juvenile court to vacate its order denying his motion to appoint Dr. Scarf as a defense expert and to enter a new order granting the motion. Elijah argued that following the protocol and using only a JCST panel expert, none of whom would protect confidentiality of attorney–client communications concerning suspected child abuse or Tarasoff threats, violated his constitutional rights under the Sixth and Fourteenth Amendments to the U.S. Constitution. Following briefing and oral argument, the court granted Elijah's petition in a published opinion on February 25, 2013. On March 20, 2013, the Court of Appeal granted the People's petition for rehearing to consider additional arguments submitted by the parties regarding CANRA and its designation of psychiatrists and psychologists as mandated reporters.
7.1. Facts
7.3. Issue
Petitioner Elijah W. was a 10-year-old juvenile charged in a wardship petition in the juvenile division of the Los Angeles County Superior Court with committing arson. A public defender was appointed to represent him. On March 6, 2012, Elijah through his counsel moved to appoint psychologist Dr. Catherine Scarf under California Evidence Code sections 730 and 952 to conduct a confidential defense evaluation regarding trial competency. His attorney believed that due to Elijah's young age and developmental immaturity, he might not be competent to stand trial. At the time of the request to appoint Dr. Scarf, she was an expert on the Los Angeles County Superior Court approved panel of psychiatrists and psychologists for adult criminal forensic matters, but she was not part of the specialized Juvenile Competency to Stand Trial (JCST) panel. Notwithstanding Dr. Scarf not being on the approved panel of forensic psychologists and psychiatrists competent in issues of juvenile trial competence, Elijah's attorney explained why Elijah wanted Dr. Scarf—she had assured the attorney she only would report child abuse and/or neglect or Tarasoff threats to Elijah's counsel, believing her duty as a mandated reporter is satisfied by reporting the information to his attorney, given her appointment as a forensic expert under the attorney–client privilege. The Los Angeles Superior Court has a protocol that when juvenile competence is in issue, the court shall appoint an expert from the JCST panel. The evaluation shall be confidential. Prior to requesting Dr. Scarf to perform the evaluation, the public defender's office had contacted the five members of the JCST panel to determine what they would do if faced with a mandatory reporting situation under CANRA. All said they would report to law enforcement or child welfare authorities any information about child abuse or Tarasoff threats, despite that they would be appointed to assist Elijah's counsel and their work was otherwise protected by the attorney–client privilege. Elijah argued that appointment of a defense expert from the JCST panel who would not protect confidentiality of attorney–client privileged information would violate his constitutional right to the effective assistance of counsel. However, under existing law and policy, when a juvenile court judge believes a minor may be incompetent to stand trial, the judge is to appoint an expert to evaluate trial competence exclusively from the JCST panel. Relying on this protocol, the juvenile court judge denied Elijah's motion to appoint Dr. Scarf, dismissing the
Whether an expert psychologist or psychiatrist appointed or retained by the defense in a criminal or juvenile matter in California must comply with the mandated reporter requirements under the Child Abuse and Neglect Reporting Act or the Tarasoff decision?
7. The case of Elijah W. v. Superior Court
7.4. Holding No. An expert psychiatrist or psychologist appointed or retained by the defense in a criminal or juvenile matter works under the attorney–client privilege, and the court declines to read into CANRA a reporting requirement than contravenes established law on confidentiality and privilege governing defense experts and potentially jeopardizes a criminal defendant's right to a fair trial. The juvenile court was directed to vacate its order and to issue a new order appointing Dr. Scarf as a defense expert. 7.5. Reasoning Judge Perluss, writing for a unanimous Court of Appeals panel, first reasoned that the issue was appropriate for appeal prior to the trial because “waiting to address these questions until the arguably confidential information is disclosed is too late,” and would frustrate the purpose of the petition, i.e., to avoid disclosure of arguably confidential information. “Similarly, if the child is warned of the defense psychologist's intention to disclose information concerning child abuse or neglect prior to the assessment, the chill on full and frank communication is immediate; and disclosures necessary for effective representation may be inhibited.” Second, the court addressed the right of a defendant to have necessary “ancillary defense services” along with the defense. A defendant “has the right not only to counsel but also to necessary ancillary defense services and that communications with both counsel and any experts engaged to assist counsel will remain protected from disclosure.” The attorney–client privilege protects confidential communication between client and attorney under both the California Evidence Code and California Business and Professions Code. In combination, these “principles mandate that defense counsel's right to appointment of necessary experts, including medical or mental health experts, also includes the right to have communications made to the
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experts remain confidential to the same extent as communications directly between client and lawyer.” California Evidence Code section 952 provides that attorney–client confidentiality is not destroyed by disclosure of those communications to third persons “to whom disclosure is reasonably necessary for … the accomplishment of the purpose for which the lawyer is consulted ….” Under California Evidence Code section 1017, forensic psychologists and psychiatrists can be appointed by the court at the request of defense counsel to provide the attorney with information needed to present a defense or enter a plea of insanity. Under California Evidence Code section 730, mental health professionals appointed to assist defense counsel are obligated to maintain confidentiality of client communications not only under the psychotherapist–patient privilege but also under the attorney–client privilege. Despite the provisions of CANRA requiring mandatory reporters to report suspected child abuse, attorneys are not mandated reporters under CANRA, and “there is no provision similar to Penal Code section 11171.2, subdivision (b), that abrogates the lawyer– client privilege for information regarding suspected child abuse or neglect.” Next, the therapist's duty to protect under Tarasoff was addressed by the court. The court noted “the psychotherapist's duty is to exercise due care,” measured under the traditional negligence standard of the rendition of reasonable care under the circumstances. This does not necessarily require the psychotherapist to notify either the potential victim or law enforcement authorities. Nothing in CANRA or its legislative history “suggests the legislature considered, let alone attempted to reconcile, the inconsistent obligations confronting a psychologist or psychiatrist appointed to assist defense counsel in a criminal proceeding.” CANRA “omits attorneys from the ranks of mandated reporters and leaves intact the lawyer–client privilege, which extends to psychotherapists when acting as forensic consultants for the defense team.” In the absence of a legislative solution of this conflict, the court was guided by different methods of statutory interpretation. First, “[A] statute must be construed, if reasonably possible, in a manner that avoids a serious constitutional question.” To require disclosure of client confidences by a member of the defense to report suspected abuse or neglect has “serious implications for a criminal defendant's constitutional right to the effective assistance of counsel.” Second, “courts have no power to recognize implied exceptions to the lawyer–client privilege.” Regarding this the court stated, “[R]eporting information obtained from the client while assisting defense counsel plainly violates the lawyer–client privilege as now defined; there is no express statutory exception permitting such a breach of client confidences in CANRA or the Evidence Code.” It added, “[W]e decline to read into CANRA's silence on these points a reporting requirement that contravenes the established law of confidentiality and privilege governing defense experts and potentially jeopardizes a criminal defendant's right to a fair trial.” The court reached “essentially the same conclusion with respect to the potential disclosure of Tarasoff threats.” First, it is not clear whether a forensic evaluator, rather than a treating therapist, has a duty to report a threat of serious danger to a known victim, noting the Tarasoff Court stressed the “special relation that arises between a patient and his doctor or psychotherapist.” “The relationship of a forensic psychologist engaged by counsel to the defendant–client is necessarily different from that of the treating psychologists considered in Tarasoff.” Whether balancing the factors to extend the protection of negligence law to the victim and family under a Tarasoff situation when the psychologist is a forensic psychologist working for the defense is an unresolved question. Second, even if there is a duty under this factual scenario, “the discharge of that duty does not necessarily require disclosure of otherwise confidential communications.” Under Tarasoff, the psychotherapist is “obligated to use reasonable care under the circumstances.” The court concluded that notifying the defense attorney, who could then consider “whether to reveal confidential information because she believes it necessary to prevent a criminal act likely to result in the death of, or great bodily injury to, an individual,” which would come under applicable
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attorney ethics and permissible disclosures, “may indeed be sufficient.” Dr. Scarf's intended notification of Elijah's attorney may insulate her from liability in a particular situation, assuming she owes a Tarasofftype duty to a potential victim in the first place. “[H]er position is certainly reasonable, and her willingness to safeguard the confidentiality of Elijah's communications at the risk of personal liability should not have been discounted by the juvenile court.” In conclusion, Elijah “was entitled to the assistance of an expert who would respect the lawyer– client privilege and defense counsel's duty of confidentiality and would not report client information concerning child abuse/neglect or a so-called Tarasoff threat to authorities.” The court ordered the trial court to appoint Dr. Scarf.
8. Scope and Implications of Elijah W. v. Superior Court In California, decisions by any of the several Courts of Appeal are binding on all trial courts in the state (Auto Equity Sales, Inc. v. Superior Court, 1962). For this reason, Elijah W. is binding on all trial courts in California. Although it is not yet clear whether this decision will be adopted as persuasive authority in other states, much of the reasoning could be adopted in other jurisdictions where the mandated reporting responsibilities differ between mental health professionals and attorneys. By basing part of the decision on constitutional principles of effective assistance of counsel, the court provided a constitutional rationale that may not be able to be altered by future legislative enactments at the state level. Also notable in the decision was the part of the analysis that was based upon the court's recognition that they do not have power to recognize “implied exceptions to the lawyer–client privilege.” The reason this is potentially important is that, notwithstanding the decision occurring in a criminal/juvenile defense context, this language is independent of that context. The attorney–client privilege is not limited to criminal/ juvenile defense but rather is fundamental in all legal settings where attorneys are representing clients. Although it will be for another court to squarely address the issue in a context other than criminal defense, the language of this section of the decision arguably is applicable to civil cases where attorneys retain forensic psychologists and psychiatrists to evaluate their clients. In such civil cases, attorneys still are not mandated reporters, and their retained forensic psychologists and psychiatrists may be faced with information that could otherwise trigger a mandated report. If the language of the attorney–client privilege does not permit a mandated report, the reasoning of Elijah W. that courts are powerless to recognize implied exceptions to the privilege would suggest that retained experts in those cases would not be permitted to breach the attorney–client privilege to report child abuse/neglect or to make a Tarasoff warning. Please note, however, that nothing in this decision prevents any person from making a report when he or she suspects child abuse or neglect. The opinion discusses only mandated reports, and it states that in situations in which a forensic psychologist or psychiatrist is retained or court appointed to perform an evaluation for an attorney, that mental health professional is held to the mandatory reporting standards of the retaining attorney. If the attorney and client agree to permit reporting of suspected abuse by agreement with the mental health professional, the mental health professional can feel free to report suspected abuse, even if not under a mandate to do so. Absent from the analysis in Elijah W. is whether the decision is binding on administrative agencies. Although one may assume this should not be an issue, a licensing board may see things differently. With good (and potentially expensive) representation the psychologist may be able to avoid an action against his or her license. However, it may well be a pyrrhic victory for the forensic psychologist to avoid a mandated report based upon the decision in Elijah W. but then have a licensing board action brought against her license for failure to make a mandated report.
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9. Conclusion Although the opinion of the California Court of Appeals in Elijah W. v. Superior Court provides clarity regarding the mandated reporting duties of forensic psychologists and psychiatrists who are either court appointed or retained by criminal defense attorneys in California state cases, this is just an island of clarity in a national sea of uncertainty. In those jurisdictions in which attorneys are mandated reporters of child abuse/neglect and the attorney–client privilege is abrogated, mental health professionals retained by attorneys also can be certain of their mandated reporting duties. However, in the majority of states where the mandated reporting duties of mental health professionals and attorneys are not the same, how forensic psychologists and psychiatrist navigate their mandated reporting duties when retained by criminal defense attorneys is unclear and may vary between jurisdictions. Tarasoff duties also can present a challenge to forensic psychologists and psychiatrists retained by attorneys. Although the factual situation in Tarasoff involved psychotherapists and the case stressed the special relationship of therapists with their patients, many mental health professionals feel compelled to make a Tarasoff report, consistent with their state duty to warn or protect, even when performing forensic assessment services. Attorneys do not have a Tarasoff duty to warn or protect, and their ethics code merely permits a breach of confidentiality in the most severe cases when the attorney is reasonably certain of imminent death or serious bodily injury. If a forensic psychologist or psychiatrist makes a Tarasoff report when performing a confidential evaluation of the attorney's client, not only may the client be harmed but also the relationship between the mental health professional and the attorney can be damaged. The case of Elijah W. v. Superior Court may provide guidance for other states that have different mandated reporting responsibilities for child abuse and neglect between mental health professionals and attorneys when forensic psychologists and psychiatrists are retained by criminal defense attorneys. At the very least, it provides a conceptual anchor for courts in other jurisdictions to think through this mandated reporting dilemma. References American Bar Association (2013). Model rules of professional conduct. Chicago, IL: Author.
American Psychiatric Association (2013). The principles of medical ethics with annotations especially applicable to psychiatry. Arlington, VA: Author. American Psychological Association (2010). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010). Retrieved from http://www.apa.org/ethics/ code/index.aspx. Auto Equity Sales, Inc., v. Superior Court, 57 Cal. 2d 450 (1962). Bersoff, D. N. (2014). Protecting victims of violent patients while protecting confidentiality. American Psychologist, 69, 461–467. Besharov, D. J. (1978). The legal aspects of reporting known and suspected child abuse and neglect. Villanova Law Review, 23, 458–520. Child Abuse and Neglect Reporting Act (CANRA), Cal. Penal Code § 11964 et seq. (2012). Child Welfare Information Gateway (2013). Mandatory reporters of child abuse and neglect. Retrieved July 27, 2014 from https://www.childwelfare.gov/systemwide/laws_ policies/statutes/manda.cfm. Dixon, J. W., & Dixon, K. E. (2006). Attorney-client privilege versus mandatory reporting by psychologists: Dilemma, conflict, and solution. Journal of Forensic Psychology Practice, 6(4), 69–78. Dostart, Z. (2006). Selective disclosure: The abrogation of the attorney-client privilege and the work product doctrine. Pepperdine Law Review, 33, 723–760. Elijah W. v. Superior Court, 216 Cal. App. 4th 140 (2013). Green, D. (2004). Lawyers as “tattletales”: A challenge to the broad application of the attorney-client privilege and rule 1.6, confidentiality of information. Georgia State University Law Review, 20, 617–658. Hall, S. R. (2006). Child abuse reporting laws and attorney-client privilege: Ethical dilemmas and practical suggestions for the forensic psychologist. Journal of Forensic Psychology Practice, 6(4), 55–68. Hickman v. Taylor, 329 U.S. 495 (1947). Jaffee v. Redmond, 518 U.S. 1 (1996). Kalichman, S. C., & Brosig, C. L. (1993). Practicing psychologists’ interpretation of and compliance with child abuse reporting laws. Law and Human Behavior, 17, 83–93. Kapoor, R., & Zonana, H. (2010). Forensic evaluations and mandated reporting of child abuse. Journal of the American Academy of Psychiatry and Law, 38, 49–56. Lockie, A. J. (2006). Salt in the wounds: Why attorneys should not be mandated reporters of child abuse. New Mexico Law Review, 36, 125–159. Marrus, E. (1998). Please keep my secret: Child abuse reporting statutes, confidentiality, and juvenile delinquency. Georgetown Journal of Legal Ethics, 11, 509–546. Mosteller, R. P. (1992). Child abuse reporting laws and attorney-client confidences: The reality and the specter of lawyer as informant. Duke Law Journal, 42, 212–278. Niland, J., Morgan, L. W., & Golding, S. (2004, Falll). Expert opinion: Does the mandatory reporting law trump attorney-client privilege? American Psychology-Law Society News, 24(3), 10–13 15. Small, M. A., Lyons, P. M., Jr., & Guy, L. S. (2002). Liability issues in child abuse and neglect reporting statutes. Professional Psychology: Research and Practice, 33, 13–18. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976). United States v. Nobles, 422 U.S. 225 (1975). Upjohn Co. v. United States, 449 U.S. 383 (1981). U.S. Department of Health and Human Services (2010). The Child Abuse Prevention and Treatment Act, including Adoptions Opportunities and the Abandoned Infants Act, As Amended by P.L. 111-320, The CAPTA Reauthorization Act of 2010. Retrieved July 27, 2014 from http://www.acf.hhs.gov/sites/default/files/cb/capta2010.pdf.
Contents lists available at ScienceDirect
International Journal of Law and Psychiatry
Attorney work product privilege trumps mandated child abuse reporting law: The case of Elijah W. v. Superior Court Craig R. Lareau ⁎ Private Practice, Los Angeles, CA, USA
a r t i c l e
i n f o
Available online 26 September 2015 Keywords: Mandated reporting Child abuse and neglect Tarasoff duty attorney-client privilege Attorney work product
a b s t r a c t Forensic psychologists and psychiatrists are licensed in their respective professions, but they perform most of their work with attorneys in the legal arena. Both attorneys and mental health professionals place high value on confidentiality of information, reflected in the ethics of their professions and codified into laws governing their work. In psychology and psychiatry, there are some well-known exceptions to confidentiality; two primary exceptions include the mandated reporting of suspected child abuse and various “Tarasoff” duty to warn or protect laws. Generally, however, the corresponding duty for attorneys to report suspected child abuse or to warn or protect intended victims of threatened harm is not as extensive. This difference in mandated reporting responsibilities can create significant difficulties when attorneys need to retain forensic psychologists and psychiatrists to evaluate their clients, especially in criminal contexts. If the retained psychologist or psychiatrist is required to report suspected abuse or threatened harm, the attorney may be harming his or her client's legal interests by using the forensic psychologist or psychiatrist to evaluate his or her client. This article will briefly review the development of mandated reporting laws for psychologists and psychiatrists and juxtapose those with the legal and ethical requirements of confidentiality for attorneys embodied in the attorney–client privilege and attorney work product privilege. The article will then discuss the California Court of Appeals case in Elijah W. v. Superior Court, where the court addressed the issue of whether retained mental health professionals must report suspected child abuse and threatened harm to others as required by law or if they do not need to report because they come under the umbrella of the attorney work product privilege. This California court ultimately concluded that retained psychologists and psychiatrists work under the attorney work product privilege and are not required to comply with mandated reporting laws and “Tarasoff” duties. © 2015 Elsevier Ltd. All rights reserved.
1. Introduction Confidentiality forms the foundation for both the practice of psychology and the practice of law. The ethics codes of the mental health professions and the legal profession emphasize the inviolability of confidentiality as the sine qua non of the standard of care. Breaches of confidentiality are almost always ethical violations and can serve as the basis for attacks on the practitioners' licenses. Notwithstanding the importance that confidentiality serves in both psychology and law, the value the respective professions place on confidentiality is not coterminous. Two areas where this is seen are in the treatment of suspected child abuse and Tarasoff situations. In all jurisdictions, mental health professionals are mandatory reporters of suspected child abuse, and in many jurisdictions, mental health professionals have a duty to warn or protect when a patient makes a serious threat of harm against an identifiable potential victim. In more than half of the states, attorneys are expressly exempted as mandatory reporters of suspected child abuse,
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and in no jurisdiction must an attorney breach confidentiality to protect an identifiable third party from threatened harm. Serious problems can arise in forensic contexts where psychologists and psychiatrists are retained by attorneys. In those jurisdictions in which reporting responsibilities differ between attorneys and their retained forensic psychologists and psychiatrists, what should the forensic psychologist or psychiatrist do when faced with a situation involving suspected child abuse or a Tarasoff-like situation? Does the forensic mental health professional breach confidentiality and report and in the process potentially harm the attorney's client? Or, does the forensic mental health professional maintain confidentiality under the umbrella of the attorney's reporting responsibilities and thereby risk the legal consequences of violating the reporting laws and their legal duties? This article will first briefly review the ethical and legal foundations of confidentiality and privilege for psychologists and for attorneys. Then the article will discuss the topics of mandated reporting of suspected child abuse and the Tarasoff duty to warn of or protect from threatened harm and will juxtapose the differences between mental health professionals and attorneys regarding these mandatory breaches of confidentiality. Next, the article will highlight the problematic issue
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of mandated reports with forensic psychologists and psychiatrists retained by attorneys to evaluate clients in legal cases. Finally, the article will discuss the California Court of Appeals case of Elijah W. v. Superior Court, in which the court squarely addressed the issue of mandated reporting for forensic psychologists retained by the defense in criminal and juvenile cases.
doctrine also protects things and information generated by others on behalf of an attorney from disclosure, provided the material was generated in anticipation of litigation (Dostart, 2006). Work of forensic psychologists and psychiatrists retained by attorneys to evaluate their clients falls under the work product doctrine. 3. Mandated reporting of suspected child abuse
2. Confidentiality and privilege Regarding the fundamental role that confidentiality plays in the process of psychotherapy, the United States Supreme Court in Jaffee v. Redmond (1996) stated, “Effective psychotherapy … depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.” (p. 10). Standard 4 of the Ethical Principles of Psychologists and Code of Conduct (EPPCC) (American Psychological Association, 2010) is titled “Privacy and Confidentiality” and contains seven enforceable code sections related to privacy and confidentiality of patient information. The section also clarifies the limited conditions under which confidentiality and privacy can be breached. Similarly, Section 4 of the code of ethics for psychiatrists (American Psychiatric Association, 2013) contains 11 code sections describing privacy and confidentiality and the specific circumstances under which they may be breached. The fundamental role of confidentiality and privacy in the mental health professions cannot be gainsaid. Without protections of confidentiality and privacy, it is unrealistic to believe that many people in need of mental health services would voluntarily seek them out. Confidentiality is so important to the provision of effective psychotherapy that all state courts and the federal courts have created psychotherapist–patient privileges to prevent confidential information from being revealed in legal proceedings except in limited circumstances (Jaffee v. Redmond, 1996). Confidentiality and privacy are arguably even more important to the attorney–client relationship than they are in psychotherapist–patient relationship. As of the early 1700s, the common law of England had recognized the need for attorneys to protect client confidences for the benefit of the client (Green, 2004). The Model Rules of Professional Conduct (MRPC) by the American Bar Association (2013), which serves as the ethical code for attorneys in all states except California, places a high value on confidentiality of client communications. MRPC 1.6, titled “Confidentiality of Information,” states that attorneys do not reveal information related to the representation of a client except in limited circumstances provided in other sections of the rule. The attorney–client privilege, which made its way into American law by the 1820s (Green, 2004), prevents client confidences from being revealed in legal proceedings, which encourages full and frank conversations between clients and their attorneys. This allows attorneys to develop the factual background of a case and sift through the legally relevant information without concern that the information provided by the client could be used to the client's detriment (Lockie, 2006; Upjohn Co. v. United States, 1981). Closely related to the attorney–client privilege is the attorney work product doctrine. Under the work product doctrine, tangible things and information collected or prepared by an attorney or an agent of an attorney in anticipation of litigation are protected from compelled disclosure, absent compelling need by the opposing side. The doctrine was recognized by the United States Supreme Court in the case of Hickman v. Taylor (1947) and was approved in a criminal law context in United States v. Nobles (1975). The work product doctrine is broader than the attorney–client privilege, which protects only confidential communications between attorney and client. The work product
It was not until the 1960s that the phenomenon and extent of the problem of child abuse and neglect entered the collective consciousness in the United States (Besharov, 1978). Societal response to these concerns moved quickly, and by 1967 every state in the country required certain professionals to reports suspected abuse or neglect to a local child protection agency (Mosteller, 1992). The purpose behind mandated reporting laws was not to protect the rights of children but rather to permit agencies of society to protect children who generally are not seen as being able to protect themselves (Marrus, 1998). Notwithstanding the intent of these laws at the state level, in practice, these laws throughout the 1960s and early 1970s added levels of bureaucracy and diffusion of responsibility that often did not succeed in their goals of protecting children (Besharov, 1978). In 1974, the Child Abuse Prevention and Treatment Act (CAPTA) was signed into law (U.S. Department of Health and Human Services, 2010). The law made federal funding contingent upon the enactment of state-level child abuse reporting statutes and the development of related procedures and programs. Soon thereafter, a new model child abuse reporting statute was released that provided guidance for complying with federal requirements. The model statute specifically identified professionals required to report abuse, which intentionally did not include attorneys. Also, the model statute abrogated all privileges except for the attorney–client privilege (Mosteller, 1992). Presently, all 50 states, the District of Columbia, and the U.S. territories have statutes requiring the reporting of known or suspected child abuse to child protective services agencies or law enforcement (Child Welfare Information Gateway, 2013). All but two states enumerate specific professional groups as mandated reporters; in those states, all persons are required to report. The most common professional groups designated as mandated reporters are as follows: mental health professionals; social workers; teachers and school personnel; physicians, nurses, and health care workers; child care providers; medical examiners or coroners; and law enforcement officers. In 18 states, any person who suspects child abuse or neglect is required to report; this includes attorneys. In only two states are attorneys specifically included in the list of mandated reporters. In most states, the relevant statutes delineate which privileged communications are abrogated by the requirement to report child abuse and which privileges are affirmed. The physician–patient, psychotherapist–patient, and husband–wife privileges are most commonly denied, while the attorney–client privilege is most commonly affirmed (Child Welfare Information Gateway, 2013). Thus, if all persons are required to report but the attorney–client privilege is affirmed, attorneys do not need to report when otherwise reportable information is provide from a client in the course of the attorney–client relationship. Although the circumstances vary for when a mandatory reporter must make a report, typically the triggering event is when a reporter suspects or has reason to believe that a child has been abused or neglected. Another common triggering circumstance is when the reporter has knowledge of or observes a child being subjected to conditions that would reasonably result in harm to the child. Generally the statutes contain similar requirements for the content of a mandated report. These include the following: who must report, what must be reported, to whom a report must be made, and when a report must be made (Hall, 2006). The statutes also commonly provide for three types of liability provisions: (1) immunity from civil and criminal liability for a report, (2) criminal liability for failure to report by a mandated reporter, and (3) criminal liability for making a false report (Small, Lyons, & Guy, 2002).
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4. Tarasoff duties to warn and/or to protect In 1976, the California Supreme Court decided Tarasoff v. Regents of the University of California. In the decision, the Court held, “When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances” (Tarasoff, 1976, p. 431). The particularity of the threatened harm necessary to trigger the duty to protect varies between jurisdictions, and mental health professionals must be familiar with the requirements of the duty, if any, in their states. In the years since the Tarasoff decision, 33 jurisdictions have enacted their own versions of Tarasoff, 11 permit warnings at the discretion of the therapist, and only 7 have not addressed the issue (Bersoff, 2014). The Tarasoff decision was limited in scope to threats constituting a serious danger of violence to another in a psychotherapeutic context; attorneys do not have a similar duty to protect others from threatened violence by their clients. Nevertheless, the Model Rules of Professional Conduct contemplates a potential breach in confidentiality when the client of an attorney threatens imminent and serious harm to another. MRPC 1.6(b)(1) states, “(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm.” The confidentiality breach is discretionary when the attorney believes his or her client is about to kill or seriously injure another person; there is no mandate to breach confidentiality in such a situation. 5. Differences in reporting duties between mental health professionals and attorneys This article is limited in its focus to mandated reporting of child abuse and neglect and Tarasoff-like duties that arise in the professional work of mental health professionals and attorneys. There are other situations in which mental health professionals are required or permitted to breach confidentiality (e.g., elder abuse, danger to self). There also are other circumstances in which an attorney may breach confidentiality (e.g., to prevent the client from using the attorney to commit crime or fraud, to defend oneself in a controversy with a client). As can be seen from the information above, in many jurisdictions, mental health professionals are mandated reporters of child abuse and neglect where attorneys are not mandated reporters. Similarly, in at least 33 states, mental health professionals have a duty to warn or protect third parties from threatened serious danger of harm from their clients, whereas attorneys are simply permitted to breach confidentiality only in the most extreme cases of potential violence. Most often these differences in mandated reporting and Tarasoff-type duties between mental health professionals and attorneys do not present any problems; mental health professionals follow their reporting requirements with their patients and attorneys follow their reporting requirements with their clients. In most cases, “never the twain shall meet.” Even in cases in which a therapy patient also is the client of an attorney, the differences in reporting responsibilities does not present a conceptual problem; the various professionals report or preserves confidentiality as required by their professional ethics and state laws. 6. Unique concerns for mandated reporting for forensic psychologists and psychiatrists Forensic psychologists and psychiatrist who perform evaluations of psycholegal issues with parties to different legal disputes can work in
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a variety of contexts. They may work for agencies (e.g., state hospitals, court clinics, correctional settings) in which they are retained by neither the court nor an attorney. Others may be private practitioners who work by themselves or in some partnership or firm and perform courtappointed evaluations for the court or for the prosecution. Still others may be privately retained by criminal defense attorneys or civil litigation attorneys to evaluate the clients of the attorneys. Following the ethics of their professions, all strive to perform objective and unbiased evaluations to provide useful information to answer the relevant psycholegal questions. When a forensic psychologist or psychiatrist is not retained by a criminal defense attorney or a civil litigation attorney to evaluate a client, there should be no dilemma about what to do when he or she is faced with a mandatory reporting situation or Tarasoff situation that arises in the course of the evaluation with the patient or client. The forensic psychologist or psychiatrist makes the mandatory report or complies with his or her Tarasoff duty. Arguably, the decision in such a case is more straightforward than if it occurs in the course of psychotherapy with a treatment provider because with an objective forensic psychologist or psychiatrist, there is little concern about the disruption of the therapeutic alliance that could be caused by making the report, and the psychotherapist–patient privilege does not apply. Despite the clarity under the law in a mandated reporting or Tarasoff situation for treating psychotherapist, some research suggests that appreciable percentages of psychotherapists do not make mandated reports in part out of concern for the potential damage to the therapeutic relationship (Kalichman & Brosig, 1993). The situation can be quite different when the forensic psychologist or psychiatrist is retained by an attorney to perform a confidential evaluation of the client. This occurs most often with criminal defense attorneys and plaintiffs' attorneys in civil cases. In those circumstances, the attorney is seeking an evaluation that may be useful in the case but usually realizes that the results of the evaluation may not be helpful; if not helpful, the attorney often will ask the forensic psychologist or psychiatrist to not write a report, and the evaluation does not become part of the case, “hidden” as attorney work product. What most attorneys are not anticipating is that the evaluation may end up harmful to the client due to the psychologist's or psychiatrist's independent responsibility as a mandated reporter of child abuse or a duty to protect under Tarasoff. At the heart of the issue when a forensic psychologist or psychiatrist is retained by an attorney to perform a confidential evaluation and he or she learns of information that meets criteria for a mandatory report or a Tarasoff duty is the concept of agency. When performing a confidential forensic evaluation when retained by an attorney, is the psychologist or psychiatrist working as an independent professional or an agent of the attorney? Most commentators who have addressed this issue have argued that the forensic psychologist or psychiatrist is acting as an agent of the attorney and therefore is subject to the attorney's mandatory reporting requirements (Dixon & Dixon, 2006; Hall, 2006; Niland, Morgan, & Golding, 2004), although others have been more undecided (Kapoor & Zonana, 2010). While conceptually an agency theory makes sense, ultimately it is a legal conclusion about whether forensic psychologists and psychiatrists are acting as agents of a retaining attorney when performing an objective forensic evaluation. Notwithstanding the attorney's and psychologist's decision about whether the psychologist should follow the attorney's reporting responsibilities or his/her profession's reporting responsibilities, that decision will not be binding upon a profession's ethics board, a criminal court, or a civil court in the event of an unfortunate consequence. Of course, in those jurisdictions in which the reporting responsibilities of mental health professionals and attorneys are the same, this is largely a moot issue. However, in many states this issue can arise, and how to handle it is a matter of debate and strategy (Hall, 2006; Kapoor & Zonana, 2010). Hall (2006) offers several suggestions of how
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to navigate “the reporting versus privilege dilemma.” She suggest to first turn to the profession's ethics codes for guidance, and to use consultation, professional legal advice, discussions with the retaining attorney, and perhaps a judicial ruling to determine the scope of one's reporting duties in a given situation. The psychologist should then determine whether she is considered an agent of the attorney; if not, she would follow the requirements of the reporting law as related to psychologists. If she does come under the purview of the attorney–client privilege, the psychologist must become knowledgeable about an attorney's reporting responsibilities under the state's privilege law through consultation. Hall further recommends that psychologists be explicit with retaining attorneys regarding their positions about mandatory reporting at the outset of the engagement, and to include a written agreement prior to accepting the referral. Lastly, Hall recommends providing clear informed consent notification to the client evaluated about the psychologist's reporting responsibilities.
confidentiality concern by reasoning the issue had never arisen in the past. The court also rejected the argument that a psychiatrist or psychologist could properly refuse to follow the mandated reporter law to disclose abuse or neglect to a child protection agency or other appropriate authority. The trial court judge wrote, “[T]he notion that the mandated reporting duty would be satisfied by reporting potential abuse only to the minor's attorney would frustrate the purpose of the mandated reporting law for the simple reason that the minor's attorney is not a mandated reporter.” 7.2. Procedural history
In 2013, the California Court of Appeals heard a case that squarely addressed the issue of mandated reporting for forensic psychologists when they are retained by criminal defense attorneys (Elijah W. v. Superior Court, 2013). The case involved California's mandatory child abuse reporting law, The Child Abuse and Neglect Reporting Act (CANRA) (2012).
On May 7, 2012, Elijah petitioned the Court of Appeals for a writ of mandate directing the juvenile court to vacate its order denying his motion to appoint Dr. Scarf as a defense expert and to enter a new order granting the motion. Elijah argued that following the protocol and using only a JCST panel expert, none of whom would protect confidentiality of attorney–client communications concerning suspected child abuse or Tarasoff threats, violated his constitutional rights under the Sixth and Fourteenth Amendments to the U.S. Constitution. Following briefing and oral argument, the court granted Elijah's petition in a published opinion on February 25, 2013. On March 20, 2013, the Court of Appeal granted the People's petition for rehearing to consider additional arguments submitted by the parties regarding CANRA and its designation of psychiatrists and psychologists as mandated reporters.
7.1. Facts
7.3. Issue
Petitioner Elijah W. was a 10-year-old juvenile charged in a wardship petition in the juvenile division of the Los Angeles County Superior Court with committing arson. A public defender was appointed to represent him. On March 6, 2012, Elijah through his counsel moved to appoint psychologist Dr. Catherine Scarf under California Evidence Code sections 730 and 952 to conduct a confidential defense evaluation regarding trial competency. His attorney believed that due to Elijah's young age and developmental immaturity, he might not be competent to stand trial. At the time of the request to appoint Dr. Scarf, she was an expert on the Los Angeles County Superior Court approved panel of psychiatrists and psychologists for adult criminal forensic matters, but she was not part of the specialized Juvenile Competency to Stand Trial (JCST) panel. Notwithstanding Dr. Scarf not being on the approved panel of forensic psychologists and psychiatrists competent in issues of juvenile trial competence, Elijah's attorney explained why Elijah wanted Dr. Scarf—she had assured the attorney she only would report child abuse and/or neglect or Tarasoff threats to Elijah's counsel, believing her duty as a mandated reporter is satisfied by reporting the information to his attorney, given her appointment as a forensic expert under the attorney–client privilege. The Los Angeles Superior Court has a protocol that when juvenile competence is in issue, the court shall appoint an expert from the JCST panel. The evaluation shall be confidential. Prior to requesting Dr. Scarf to perform the evaluation, the public defender's office had contacted the five members of the JCST panel to determine what they would do if faced with a mandatory reporting situation under CANRA. All said they would report to law enforcement or child welfare authorities any information about child abuse or Tarasoff threats, despite that they would be appointed to assist Elijah's counsel and their work was otherwise protected by the attorney–client privilege. Elijah argued that appointment of a defense expert from the JCST panel who would not protect confidentiality of attorney–client privileged information would violate his constitutional right to the effective assistance of counsel. However, under existing law and policy, when a juvenile court judge believes a minor may be incompetent to stand trial, the judge is to appoint an expert to evaluate trial competence exclusively from the JCST panel. Relying on this protocol, the juvenile court judge denied Elijah's motion to appoint Dr. Scarf, dismissing the
Whether an expert psychologist or psychiatrist appointed or retained by the defense in a criminal or juvenile matter in California must comply with the mandated reporter requirements under the Child Abuse and Neglect Reporting Act or the Tarasoff decision?
7. The case of Elijah W. v. Superior Court
7.4. Holding No. An expert psychiatrist or psychologist appointed or retained by the defense in a criminal or juvenile matter works under the attorney–client privilege, and the court declines to read into CANRA a reporting requirement than contravenes established law on confidentiality and privilege governing defense experts and potentially jeopardizes a criminal defendant's right to a fair trial. The juvenile court was directed to vacate its order and to issue a new order appointing Dr. Scarf as a defense expert. 7.5. Reasoning Judge Perluss, writing for a unanimous Court of Appeals panel, first reasoned that the issue was appropriate for appeal prior to the trial because “waiting to address these questions until the arguably confidential information is disclosed is too late,” and would frustrate the purpose of the petition, i.e., to avoid disclosure of arguably confidential information. “Similarly, if the child is warned of the defense psychologist's intention to disclose information concerning child abuse or neglect prior to the assessment, the chill on full and frank communication is immediate; and disclosures necessary for effective representation may be inhibited.” Second, the court addressed the right of a defendant to have necessary “ancillary defense services” along with the defense. A defendant “has the right not only to counsel but also to necessary ancillary defense services and that communications with both counsel and any experts engaged to assist counsel will remain protected from disclosure.” The attorney–client privilege protects confidential communication between client and attorney under both the California Evidence Code and California Business and Professions Code. In combination, these “principles mandate that defense counsel's right to appointment of necessary experts, including medical or mental health experts, also includes the right to have communications made to the
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experts remain confidential to the same extent as communications directly between client and lawyer.” California Evidence Code section 952 provides that attorney–client confidentiality is not destroyed by disclosure of those communications to third persons “to whom disclosure is reasonably necessary for … the accomplishment of the purpose for which the lawyer is consulted ….” Under California Evidence Code section 1017, forensic psychologists and psychiatrists can be appointed by the court at the request of defense counsel to provide the attorney with information needed to present a defense or enter a plea of insanity. Under California Evidence Code section 730, mental health professionals appointed to assist defense counsel are obligated to maintain confidentiality of client communications not only under the psychotherapist–patient privilege but also under the attorney–client privilege. Despite the provisions of CANRA requiring mandatory reporters to report suspected child abuse, attorneys are not mandated reporters under CANRA, and “there is no provision similar to Penal Code section 11171.2, subdivision (b), that abrogates the lawyer– client privilege for information regarding suspected child abuse or neglect.” Next, the therapist's duty to protect under Tarasoff was addressed by the court. The court noted “the psychotherapist's duty is to exercise due care,” measured under the traditional negligence standard of the rendition of reasonable care under the circumstances. This does not necessarily require the psychotherapist to notify either the potential victim or law enforcement authorities. Nothing in CANRA or its legislative history “suggests the legislature considered, let alone attempted to reconcile, the inconsistent obligations confronting a psychologist or psychiatrist appointed to assist defense counsel in a criminal proceeding.” CANRA “omits attorneys from the ranks of mandated reporters and leaves intact the lawyer–client privilege, which extends to psychotherapists when acting as forensic consultants for the defense team.” In the absence of a legislative solution of this conflict, the court was guided by different methods of statutory interpretation. First, “[A] statute must be construed, if reasonably possible, in a manner that avoids a serious constitutional question.” To require disclosure of client confidences by a member of the defense to report suspected abuse or neglect has “serious implications for a criminal defendant's constitutional right to the effective assistance of counsel.” Second, “courts have no power to recognize implied exceptions to the lawyer–client privilege.” Regarding this the court stated, “[R]eporting information obtained from the client while assisting defense counsel plainly violates the lawyer–client privilege as now defined; there is no express statutory exception permitting such a breach of client confidences in CANRA or the Evidence Code.” It added, “[W]e decline to read into CANRA's silence on these points a reporting requirement that contravenes the established law of confidentiality and privilege governing defense experts and potentially jeopardizes a criminal defendant's right to a fair trial.” The court reached “essentially the same conclusion with respect to the potential disclosure of Tarasoff threats.” First, it is not clear whether a forensic evaluator, rather than a treating therapist, has a duty to report a threat of serious danger to a known victim, noting the Tarasoff Court stressed the “special relation that arises between a patient and his doctor or psychotherapist.” “The relationship of a forensic psychologist engaged by counsel to the defendant–client is necessarily different from that of the treating psychologists considered in Tarasoff.” Whether balancing the factors to extend the protection of negligence law to the victim and family under a Tarasoff situation when the psychologist is a forensic psychologist working for the defense is an unresolved question. Second, even if there is a duty under this factual scenario, “the discharge of that duty does not necessarily require disclosure of otherwise confidential communications.” Under Tarasoff, the psychotherapist is “obligated to use reasonable care under the circumstances.” The court concluded that notifying the defense attorney, who could then consider “whether to reveal confidential information because she believes it necessary to prevent a criminal act likely to result in the death of, or great bodily injury to, an individual,” which would come under applicable
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attorney ethics and permissible disclosures, “may indeed be sufficient.” Dr. Scarf's intended notification of Elijah's attorney may insulate her from liability in a particular situation, assuming she owes a Tarasofftype duty to a potential victim in the first place. “[H]er position is certainly reasonable, and her willingness to safeguard the confidentiality of Elijah's communications at the risk of personal liability should not have been discounted by the juvenile court.” In conclusion, Elijah “was entitled to the assistance of an expert who would respect the lawyer– client privilege and defense counsel's duty of confidentiality and would not report client information concerning child abuse/neglect or a so-called Tarasoff threat to authorities.” The court ordered the trial court to appoint Dr. Scarf.
8. Scope and Implications of Elijah W. v. Superior Court In California, decisions by any of the several Courts of Appeal are binding on all trial courts in the state (Auto Equity Sales, Inc. v. Superior Court, 1962). For this reason, Elijah W. is binding on all trial courts in California. Although it is not yet clear whether this decision will be adopted as persuasive authority in other states, much of the reasoning could be adopted in other jurisdictions where the mandated reporting responsibilities differ between mental health professionals and attorneys. By basing part of the decision on constitutional principles of effective assistance of counsel, the court provided a constitutional rationale that may not be able to be altered by future legislative enactments at the state level. Also notable in the decision was the part of the analysis that was based upon the court's recognition that they do not have power to recognize “implied exceptions to the lawyer–client privilege.” The reason this is potentially important is that, notwithstanding the decision occurring in a criminal/juvenile defense context, this language is independent of that context. The attorney–client privilege is not limited to criminal/ juvenile defense but rather is fundamental in all legal settings where attorneys are representing clients. Although it will be for another court to squarely address the issue in a context other than criminal defense, the language of this section of the decision arguably is applicable to civil cases where attorneys retain forensic psychologists and psychiatrists to evaluate their clients. In such civil cases, attorneys still are not mandated reporters, and their retained forensic psychologists and psychiatrists may be faced with information that could otherwise trigger a mandated report. If the language of the attorney–client privilege does not permit a mandated report, the reasoning of Elijah W. that courts are powerless to recognize implied exceptions to the privilege would suggest that retained experts in those cases would not be permitted to breach the attorney–client privilege to report child abuse/neglect or to make a Tarasoff warning. Please note, however, that nothing in this decision prevents any person from making a report when he or she suspects child abuse or neglect. The opinion discusses only mandated reports, and it states that in situations in which a forensic psychologist or psychiatrist is retained or court appointed to perform an evaluation for an attorney, that mental health professional is held to the mandatory reporting standards of the retaining attorney. If the attorney and client agree to permit reporting of suspected abuse by agreement with the mental health professional, the mental health professional can feel free to report suspected abuse, even if not under a mandate to do so. Absent from the analysis in Elijah W. is whether the decision is binding on administrative agencies. Although one may assume this should not be an issue, a licensing board may see things differently. With good (and potentially expensive) representation the psychologist may be able to avoid an action against his or her license. However, it may well be a pyrrhic victory for the forensic psychologist to avoid a mandated report based upon the decision in Elijah W. but then have a licensing board action brought against her license for failure to make a mandated report.
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9. Conclusion Although the opinion of the California Court of Appeals in Elijah W. v. Superior Court provides clarity regarding the mandated reporting duties of forensic psychologists and psychiatrists who are either court appointed or retained by criminal defense attorneys in California state cases, this is just an island of clarity in a national sea of uncertainty. In those jurisdictions in which attorneys are mandated reporters of child abuse/neglect and the attorney–client privilege is abrogated, mental health professionals retained by attorneys also can be certain of their mandated reporting duties. However, in the majority of states where the mandated reporting duties of mental health professionals and attorneys are not the same, how forensic psychologists and psychiatrist navigate their mandated reporting duties when retained by criminal defense attorneys is unclear and may vary between jurisdictions. Tarasoff duties also can present a challenge to forensic psychologists and psychiatrists retained by attorneys. Although the factual situation in Tarasoff involved psychotherapists and the case stressed the special relationship of therapists with their patients, many mental health professionals feel compelled to make a Tarasoff report, consistent with their state duty to warn or protect, even when performing forensic assessment services. Attorneys do not have a Tarasoff duty to warn or protect, and their ethics code merely permits a breach of confidentiality in the most severe cases when the attorney is reasonably certain of imminent death or serious bodily injury. If a forensic psychologist or psychiatrist makes a Tarasoff report when performing a confidential evaluation of the attorney's client, not only may the client be harmed but also the relationship between the mental health professional and the attorney can be damaged. The case of Elijah W. v. Superior Court may provide guidance for other states that have different mandated reporting responsibilities for child abuse and neglect between mental health professionals and attorneys when forensic psychologists and psychiatrists are retained by criminal defense attorneys. At the very least, it provides a conceptual anchor for courts in other jurisdictions to think through this mandated reporting dilemma. References American Bar Association (2013). Model rules of professional conduct. Chicago, IL: Author.
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