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In this superior court decision, the trial court denied
the State's motion to compel a battered women's shelter to disclose
the mother's health records. The State argued that the "Specific
Steps" required the mother to sign releases and allow DCF to communicate
with her service providers. Accordingly, the mother did not have
an expectation of privacy as to these health records. The State
cited In re Romance, theoretically for the proposition that
the public interest and best interest of the child required the
disclosure of these records. (The State did not file a brief outlining
their Romance argument.)
The superior court initially granted an ex parte order
mandating the Shelter disclose the mother's records. The Shelter
objected. They noted that CGS 52-146k states that communications
between a battered women's shelter counselor and victim are privileged
and that there was no "best interest" exception in the statute.
The Shelter further argued that the Romance
holding discussing a "best interest of the child" exception to statutory
privilege was abrogated by the Supreme Court's decision in Falco
v. Institute of Living. In Falco, the Court held that
the "psychiatrist-patient privilege may be overridden only by legislatively
enacted exceptions." The Court reasoned that it was contrary to
the language of the statute and the intent of the legislature for
courts to make discretionary case-by-case determinations of when
the privilege may be overridden. Accordingly, only the statutory
exceptions to the privilege applied.
The Superior Court decided in favor of the Shelter
and denied the State's Motion to Disclose. Although the privilege
at issue in Falco was the psychiatrist-patient privilege,
the Superior Court held that the principal applied to all statutory
privileges. The Superior Court concluded that the "Best interests
of the child" justification for overriding privilege ceased to exist
after Falco. The Court cited to the author's note in Tait's
Handbook of Connecticut Evidence § 1:15.2 (3d Ed. 2001) for confirmation
of this conclusion.
The Court further held that while, pursuant to C.G.S.
52-146f(5), the "psychiatrist-patient" privilege may be overridden
where the patient introduces his mental condition as an element
of his claim or defense, this exception was not delineated in C.G.S.
52-146k, the statute conferring privilege between a battered women's
or sexual assault counselor and victim.
Lastly, the Court stated that the "specific steps"
were a pathway towards reunification. Once the State filed a TPR
petition, the "steps" were no longer binding on the parent. Therefore,
the State was left with no argument in favor of mandatory disclosure.
In dicta, the Court also noted that it was arguable
whether at the TPR stage, a parent could be deemed to have raised
their mental health as an element of their defense sufficient to
breach even the psychiatrist-patient privilege. (Again, citing to
Tait's Handbook of Connecticut Evidence, § 5.46.5, pg. 347.)
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