Confidentiality – § 51.30(4) – Emergency Detention Statement
Release by a police department of a statement of emergency detention, occasioned by a deputy sheriff’s threat to kill superior officers, violated the § 51.30(4) prohibition on release of “treatment records”; and was not justified by the public policy exception that imposes on psychiatrists the duty to warn potential targets of threats made by patients.
Interesting problem. Kuhtz, a deputy, was seeing for the very first time a therapist, “for work-related stress and anxiety.” With good reason, apparently, because he told her he had thoughts of killing himself and his supervisors. She reported the threats to the local police — as she was seemingly required to do under Schuster v. Altenberg, 144 Wis.2d 223, 424 N.W.2d 159 (1988) (under “dangerous patient exception,” patient’s threat of imminent harm to another not privileged, and therapist has duty to report). As that court put it, “the interest of public safety commands some limited intrusion upon confidentiality.” So, Kuhtz goes to a therapist, opens up, and finds himself under emergency detention. Next, the Tosa police, who were the ones who took him into custody, decide that Kuhtz’s superior officers, the ones he threatened to kill, should be notified. As a result, they faxed to the sheriff’s department an incident report and the statement of emergency detention, which the court now says subjected them to claim for violating § 51.30(4).
¶16 We agree with the circuit court to the extent that it concluded that Schuster held that a treating psychiatrist or psychologist has a duty to warn a person targeted by a credible threat. See id., 144 Wis. 2d at 239-40. And we acknowledge that the City here was operating with the best of intentions—trying to protect the safety of the threatened individuals. But we conclude that our decision in Schuster does not create an exception to WIS. STAT. § 51.30(4) and accordingly, we reverse the trial court’s contrary ruling
Did the police have a duty to warn? That issue wasn’t briefed and the court doesn’t reach it, ¶26. But the court nonetheless makes it clear that, in dealing with “credible threats,” options other than releasing confidential material are available: “For instance, either the therapist or the police department could have simply made a phone call to advise the sheriff’s department that a threat had been made,” id. You can tell the threatened person that a threat has been made and nothing else? Or can you tell him who made it and what’s being done about it? And if the latter, then what’s the policy basis for withholding the detention statement? You probably haven’t heard the last of this problem.
This area is much too fraught for discussion in a short post, but for application of the “dangerous-patient” rule in the search and seizure context, take a look at State v. Agacki, 226 Wis.2d 349, 595 N.W.2d 31 (Ct. App. 1999) (police officer may testify at suppression hearing about psychotherapist’s account of patient’s disclosure, which provided basis for probable cause to search the patient); and especially Judge Fine’s concurrence in that case, because he rightly cautions that evidentiary use should be limited to expressions of intended future harm, as opposed to “events antedating the confidential communication and described in that communication.” And note a catch-all provision (release pursuant to lawful order of court), alluded to in ¶26 n. 7. This provision was discussed in Billy Jo W. v. Metro, 182 Wis.2d 616, 627-28, 514 N.W.2d 707 (1994):
For the reasons set forth, we read the phrase “pursuant to lawful order of the court” in 51.30(3) to allow narrow exceptions to the closing of ch. 51 civil commitment court records. In this case we identify three narrow circumstances in which a court may release such court records under sec. 51.30(3). A court may release ch. 51 civil commitment court records (1) when the requested access fits within one of the statutory exceptions to the confidentiality of mental health treatment records enumerated in sec. 51.30(4)(b); (2) when the requested access is comparable to one of the statutory exceptions to the confidentiality of mental health treatment records enumerated in sec. 51.30(4)(b); and (3) when a significant interrelationship exists between the court records of the civil commitment proceedings at issue and a criminal proceeding involving a violent felony pending prior to the civil commitment.