A woman walking home from a PTA meeting sustained life-threatening injuries when she was brutally attacked. Nearly three months later, with the case still unsolved, the police received an anonymous call from a woman identifying herself as an employee of a psychiatric hospital. The woman claimed that she had overheard a patient, Kennedy Smith, admit to an assault. Three days later, Detective James Keane, with whom Smith was acquainted, asked the hospital for permission to interview Smith, Sam David, a senior psychiatric social worker, granted permission provided that Smith consent to the interview. Smith, identifying Keane as "a friend," allowed the interview and after being apprised of his constitutional rights, claimed to have been in Georgia at the time of the assault.
The next day, Smith requested another meeting. After once again apprising Smith of his rights, Keane told Smith that whether or not he confessed he would be charged with the crime, but if he confessed Keane would ensure that he would "get help." Smith admitted that he had lied in the previous interview and confessed to the attack.
What if a patient tells staff that he is going to murder someone?
After his arrest, Smith moved to suppress the confession, arguing that it was the product of an unlawful custodial interrogation and that it violated the psychologist-patient privilege. One of the hospital psychiatrists testified that Smith was allowed to speak to police, despite being on the anti-manic lithium and mellaril, because his mind was clear, and the low dosage of drugs did not affect Smith's judgment or competency. In fact, the psychiatrist testified that a hospital psychiatric team that same day had found Smith stable enough to be released, The court denied the suppression motion, and Smith appealed.
Holding: The motion was properly denied and the conviction was affirmed. The court quoted the U.S. Supreme Courts statement in Colorado v. Connelly, 479 U.S. 157 (1986), that "coercive police activity is a necessary predicate to [a] finding tat a confession is not 'voluntary' within the meaning of the Due Process Clause." As such, mental illness alone would not support a claim that a waiver of rights was not voluntary. After looking at the record, the court held that the evidence supported a conclusion that Smith's confession was in fact voluntary.
Turning to the claim of a violation of a psychologist-patient privilege, the court found that there was no evidence that the anonymous informant was a member of Smith's treatment team and not just an "interloper who overheard the incriminating statements." Noting that the privilege would not extend to a third-party "eavesdropper," the court held that the trial court properly found it inapplicable. The court added that since the police in no way coerced the hospital employee into providing the information, it would be wrong to punish the police—and the public—for a violation of the privilege.
 | Lewis Opler, M.D., Ph.D. Adjunct Professor of Psychiatry Columbia University |
Dr. Opler comments: In State v. Smith, there was no violation of the psychiatrist-patient privilege, as there was no evidence that the anonymous caller was the treating psychiatrist, or even a member of the treatment team.
But what if the patient had told his psychiatrist that he had attempted to murder someone? When does the psychiatrist's obligation to the welfare of others override his duty to observe confidentiality in treating his patient?
There are two instances when the welfare of others overrides confidentiality. One is when the patient reveals information that leads the psychiatrist to even suspect that child abuse or neglect is occurring. At that point, he has a legal obligation to report this to child protective services. The other situation is when a patient reveals the intent to seriously harm someone, in which case the psychiatrist is obliged to warn the intended target as well as to inform the police.
What if Smith had told his psychiatrist that he had seriously assaulted someone in the past? This in itself does not indicate an intent to do so again. However, if Smith indicated that, in order to avoid prosecution, he would harm to intimidate or even kill the woman to avoid her identifying him as her assailant, then the psychiatrist should notify both the police and, if he knows how to contact her, the intended target.
Except in these instances, however, confidentiality between a psychiatrist and a patient should be observed. Once an unquestioned part of psychiatric practice, confidentiality is being subtly eroded in the present managed care and cost-containment environment. Psychiatrists find themselves presenting confidential material to case managers and to other reviewers whose primary loyalty is not to the patient but rather to the health maintenance organization ("HMO") or insurance company that employs them.
If a case manager requests information without first supplying the psychiatrist with a signed consent from the patient, the psychiatrist should refuse to provide information. I am concerned that too many of my colleagues, especially in the context of the current managed care environment, do not routinely demand to see such a signed consent before revealing confidential information. If they continue, the psychiatrist, after obtaining the persons name, should inquire: "Are you asking me to break the law?"
In the late 1980s I was involved in a high profile case (the name of which, of course, I have to keep confidential) in which I found this one-liner extremely effective with lawyers, the media, and even law enforcement agents. Short of child abuse, immediate danger, or a subpoena, even law enforcement agents have no right to demand release of information shared within the context of the psychiatrist-patient relationship.
| Robert Ward, J.D. Professor New England School of Law |
Professor Ward comments: This case reaffirms a rather curious principle of law: Even a person who is mentally ill can knowingly, intelligently, and voluntarily waive his or her constitutional rights. In Smith, the right at issue was a defendant's Fifth Amendment right against self-incrimination, which is protected largely through the use of Miranda warnings. Miranda v. Arizona, 384 US. 436 (1966).
Since 1966, Miranda warnings have become part of police movie culture. There are very few Americans who don't know something about them. However, this is an area where a little knowledge is dangerous. Miranda warnings are required only when 1) A person is custody, 2) The person is being interrogated, and 3) The interrogation is being conducted by a government official.
Once a Miranda warning has been given to a suspect, the suspect is then free to waive the right to remain silent and the right to have an attorney during questioning. See generally Miranda v. Arizona, 384 U.S. at 475. The waiver, however, must be knowing, intelligent, and voluntary. Knowing has been held to mean informed. See generally Edwards v. Arizona, 451 U.S. 477 (1981). For a waiver to be intelligent, the government must show that the suspect understood, in a general way, the consequences of waiving the rights. See generally Teague v. Louisiana, 444 U.S. 469 (1980). This rule does not require that the waiver be wise.
The "voluntary" element is satisfied when there is evidence that a suspect was not coerced into relinquishing his rights. Colorado v. Connelly, 479 U.S. 157 (1986). The age, gender, race and mental condition of the suspect are factors to consider when determining whether the waiver was voluntary but it is not dispositive of the question. In Connelly, the U.S. Supreme Court found that a chronic schizophrenic who was suffering from command hallucinations could exercise a valid waiver.
"Are you asking me to break the law?"
Given this backdrop, it is not surprising that the New Jersey court in Smith concluded that the waiver was valid. It is significant that Mr. Smith initiated the second meeting. This conduct suggested a lack of fear or intimidation. He appeared to be lucid, and his expression of remorse suggested a level of understanding about the consequences of his behavior. Taken together, the court found these facts to prove that Mr. Smith exercised a valid waiver of his Miranda rights.
Generally, courts are not concerned with what motivates a person to confess, provided there's been no abuse of the suspect by the police. An argument can be made that in Smith, Detective Keane took advantage of the defendant. Mr. Smith was mentally ill, on drugs, and he had a false sense of the nature of his relationship with the Detective. Detective Keane preyed on the defendant's weakness with statements like, if Mr. Smith cooperated, he "would get help," and that "he would be arrested even without a confession." Under a totality of the circumstances analysis, and given the facts, non-lawyers might reasonably conclude that the confession was not the result of a knowing intelligent and voluntary waiver, but instead the product of subtle, psychological trickery.
An equally unsettling aspect of this decision is the court's conclusion that his confession was not the fruit or product of a violation of the psychologist-patient privilege. The information supplied by the unidentified female caller was derived directly from her overhearing a discussion between the defendant and a member of his medical team. Typically statements between a patient and clinician are confidential. PROPOSED FEDERAL RULES OF EVIDENCE 504. The reason for the privilege is to encourage a client to disclose those intimate details which will facilitate treatment. MCCORMICK ON EVIDENCE ADVISORY COMMITTEE'S REPORT Ch. 8872 (4th Ed.). Prior to disclosure by the employee, Mr. Smith was not a suspect. Without the tip he would never have been interviewed. The court in Smith sidesteps the breach confidentiality issue by concluding that there was no state action because the informant was not acting at the suggestion or in concert with the police. Since there was no state action, there was no need to apply the exclusionary rule.
The courts analysis is short-sighted and may encourage other whistle-blowers to come forward and disclose information that would be confidential. What is there to preclude other mental health employees from actively using their positions to assist the police in other gruesome or high profile cases?
More importantly perhaps, can those who suffer from a mental illness continue to trust their clinicians? Should attorneys now advise a client not to cooperate with the mental health staff because the client runs the risk of having his disclosures used against him at trial? It is unclear what long term impact Smith will have on the relationship between psychologist and patient, but the situation bears watching.
