COMMONWEALTH OF PENNSYLVANIA v. BRANDON A. SEGARRA APPEAL OF: COMPLAINANT WITNESS, D.G., A MINOR
No. 3097 EDA 2018
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED FEBRUARY 10, 2020
2020 PA Super 31
BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*
Appeal from the Order Entered September 20, 2018 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010618-2017
D.G., a minor, appeals from a September 20, 2018 discovery order, where the trial court orally ordered D.G.s legal counsel and guardian ad litem (Child Advocate) to review D.G.s mental health records and report her findings to the trial court.1 We reverse.
We glean the following relevant factual and procedural history from the record. In December 2017, Brandon A. Segarra was charged with raping D.G., and related crimes. The rape is alleged to have occurred in 2015 when D.G. was 15 years old. In preparation for Segarras trial, the Commonwealth subpoenaed D.G.s non-privileged medical records from the
On September 14, 2018, Segarra filed a motion to compel discovery of D.G.s mental health records.5 The trial court held a hearing on the motion on September 20, 2018. Child Advocate appeared at the hearing,6 along with counsel for the Commonwealth and Segarra. D.G. and the Commonwealth opposed the motion to compel based on the privileged
The trial court held a status hearing on November 2, 2018, at which Child Advocate and counsel for the parties appeared. Child Advocate explained she filed the instant appeal on behalf of D.G. because, inter alia, it required her to violate her ethical duty to represent the interests of her
The trial court did not order D.G. to file a statement pursuant to
On appeal, D.G. claims her mental health records from the Horsham Clinic are absolutely privileged and not subject to in camera review.7 Specifically, D.G. raises four issues for our review.
Did the trial court err when it ordered [] Child Advocate to review [D.G.s] privileged and confidential mental health records for inconsistent statements and report her findings to the trial court with the intention to possibly turn the statements [over] to [Segarra] as impeachment evidence against [D.G.]? - Were [D.G.s] psychiatric records from her inpatient stay at the Horsham Clinic protected under
42 Pa.C.S.[] § 5944 and the Mental Health Procedures [sic] Act under50 P.S. § 7111[,] thereby precluding the trial court and any other party from reviewing [D.G.s] privileged and confidential mental health records? - Did Horsham Clinics error in sending [D.G.s] mental health records to the Commonwealth without [D.G.s] consent and knowledge waive [D.G.s] privilege?
- Would [Segarras] rights of confrontation and due process be violated if [] Child Advocate, in possession of privileged and confidential mental health records that are statutorily protected from disclosure, did not provide these records to the trial court for review?
D.G.s Brief at 4-5.
APPEALABILITY
Preliminarily, we must determine whether the order from which D.G. appeals is appealable, because appealability implicates our jurisdiction. In the Interest of J.M., 219 A.3d 645, 650 (Pa. Super. 2019). “Jurisdiction is purely a question of law; the appellate standard of review is de novo and the scope of review plenary.” Id. (citation and internal quotation marks omitted). In order to be appealable, the order must be: (1) a final order,
“The courts of Pennsylvania have uniformly held that, if an appellant asserts that the trial court has ordered him [or her] to produce materials that are privileged, then Rule 313 applies.” Farrell v. Regola, 150 A.3d 87, 95 (Pa. Super. 2016), citing Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1016 n.1 (Pa. Super. 2015) (“When a party is ordered to produce materials purportedly subject to a privilege, we have jurisdiction under
We next address the appealability of the trial courts oral order issued at the September 20, 2018 hearing. No written order memorializing the oral order appears in the certified record, but the certified docket contains the following entry on September 20, 2018: “Order Granting Motion in Limine[.] Motion to have Child Advocate review the victims [sic] Medical Records is granted.” Docket Entry, 9/20/2018; see
Neither Segarra nor the Commonwealth has challenged the lack of a written order. Although there is no explanation as to why the trial court did not file a written order, the trial court clearly ordered Child Advocate to review D.G.s mental health records and entered it on the docket. N.T., 9/20/2018, at 40; Docket Entry, 9/20/2018.
“In some instances, oral orders, made on the record, need not be filed or entered on the docket in order to be valid.” Jackson v. Hendrick, 746 A.2d 574, 576 (Pa. 2000) (plurality) (citations omitted). In Jackson, our Supreme Court considered the propriety of a trial courts unequivocal, on-the-record, oral vacatur while it took a motion for reconsideration under
litigants must be able to rely on representations made by the court, and it would be inequitable and detrimental to the functioning of the judicial system if such on-the-record representations could not be trusted. The efficient resolution of disputes requires that litigants be able to rely on oral representations and orders of court, rather than be forced to treat such matters as merely tentative and unreliable while awaiting the filing of written orders.
Id.
We conclude that the case here is one of those instances where the trial courts oral order is valid despite the lack of a filed written order. The trial courts oral order at the September 20, 2018 hearing was unequivocal and on the record, it appears on the docket, and none of the parties challenges the lack of a written order. Child Advocate acted in good faith reliance on the trial courts oral representation that the trial court was ordering her to review D.G.s medical records and report to the trial court any impeachment evidence. Not permitting D.G. to appeal collaterally her claim of privilege now and requiring her to wait until the trial court files a written order following remand would cause needless delay and disrupt the efficient resolution of Segarras criminal proceedings and the issue of privilege of D.G.s mental health records. See id. (“[E]quity enjoys flexibility to correct court errors that would produce unfair results.“); see also Pittsburgh Action Against Rape v. Dep‘t of Public Welfare, 120 A.3d 1078, 1080 (Pa. Cmwlth. 2015) (concluding administrative law judges
STATUTORY PRIVILEGE
Having determined that we have jurisdiction over this appeal, we now turn to D.G.s issues, beginning with statutory privilege. D.G. contends that disclosure of her mental health records is barred by section 7111 of the MHPA,
Even though Pennsylvania courts disfavor privileges since they obstruct the ability to ascertain the truth, we will faithfully adhere to constitutional, statutory, or common law privileges. If the legislature has considered the interests at stake and has granted protection to certain relationships or categories of information, the courts may not abrogate that protection on the basis of their own perception of public policy unless a clear basis for doing so exists in a statute, the common law, or constitutional principles. This court does not have the power to
order disclosure of materials that the legislature has explicitly directed be kept confidential.
Id. at 97 (citations and quotation marks omitted).
We first examine whether D.G.s mental health records are protected by the MHPA, keeping in mind that the MHPA is to be strictly construed. Commonwealth v. Moyer, 595 A.2d 1177, 1179 (Pa. Super. 1991). Section 7103 of the MHPA specifies that “[t]his act establishes rights and procedures for all involuntary treatment of mentally ill persons, whether inpatient or outpatient, and for all voluntary inpatient treatment of mentally ill persons.”
Section 7111 of the MHPA “mandates that all documentation concerning persons in treatment be kept confidential, in the absence of patient consent, except in four limited circumstances.” Zane v. Friends Hosp., 836 A.2d 25, 31 (Pa. 2003); see also In re Fortieth Statewide Investigating Grand Jury, 220 A.3d 558, 566-67 (Pa. 2019). Section 7111 provides as follows.
(a) All documents concerning persons in treatment shall be kept confidential and, without the persons written consent, may not be released or their contents disclosed to anyone except:
- those engaged in providing treatment for the person;
- the county administrator, pursuant to [
50 P.S. § 7110 ];- a court in the course of legal proceedings authorized by this act; and
- pursuant to Federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a Federal agency.
In no event, however, shall privileged communications, whether written or oral, be disclosed to anyone without such written consent. This shall not restrict the collection and analysis of clinical or statistical data by the department, the county administrator or the facility so long as the use and dissemination of such data does not identify individual patients. Nothing herein shall be construed to conflict with section 8 of the act of April 14, 1972 (P.L. 221, No. 63), known as the “Pennsylvania Drug and Alcohol Abuse Control Act.”
Instantly, there is no dispute that the Horsham Clinic is a “facility” within the meaning of the MHPA. Next, Child Advocate stated at the September 20, 2018 hearing that D.G. received inpatient treatment at the Horsham Clinic. Trial Court Opinion, 1/25/2019, at 10, citing N.T., 9/20/2018, at 8. Thus, the MHPA applies.9
In construing [s]ection 7111, our [Supreme] Court determined that, by its clear and unambiguous terms, disclosure was allowed only in certain limited enumerated instances, and only to parties designated by the statute. ... Apart from these express exceptions, our Court held that disclosure is permitted to third parties only where the patient has given his or her written consent:
The unambiguous terms contained in the provision regarding the confidentiality of medical records leaves little room for doubt as to the intent of the Legislature regarding this section. ...“[A]ll documents concerning persons in treatment shall be kept confidential and, without the persons written consent, may not be released or their contents disclosed to anyone.”
50 P.S. § 7111(a) . The provision applies to all documents regarding ones treatment, not just medical records. Furthermore, the verbiage that the documents ”shall be kept confidential” is plainly not discretionary but mandatory in this context—it is a requirement. The release of the documents is contingent upon the persons written consent and the documents may not be released ”to anyone” without such consent. The terms of the provision are eminently clear and unmistakable and the core meaning of this confidentiality section of the [MHPA] is without doubt—there shall be no disclosure of the treatment documents to anyone.Zane[, 836 A.2d at 31-32] (emphasis original). Consequently, our [Supreme] Court ruled that, because the disclosure of mental health treatment records for purposes of a civil proceeding was not one of the permissible disclosures set forth in [s]ection 7111, and because the patient had not given written consent for their disclosure, the trial courts order compelling their disclosure was legally erroneous and could not be enforced.
In re Fortieth Statewide Investigating Grand Jury, 220 A.3d at 566-67 (emphasis in original).
Similarly here, none of the enumerated exceptions set forth in subsection 7111(a) applies, and there is no question that D.G. did not give written consent for the disclosure of her mental health records.10 The documents are not sought by one treating the person or by a county administrator, nor is there any suggestion that any treatment was undertaken in a federal agency. See
A strict construction of Section 7111 reveals that all documents concerning persons in treatment are to be kept confidential and may not be released or disclosed to anyone, absent the patients written consent, with certain exceptions. [...] The third exception to the privilege of confidentiality conferred by the MHPA on a patients records allows a court to review the records in the course of legal proceedings authorized by the MHPA.
50 P.S. § 7111(3) .The unambiguous language of section 7111(3) leads us to conclude that a patients inpatient mental health treatment records may be used by a court only when the legal proceedings being conducted are within the framework of the MHPA, that is, involuntary and voluntary mental health commitment proceedings. See
50 P.S. § 7103 (MHPA establishes the rights and procedures for all involuntary treatment of mentally ill persons, whether inpatient or outpatient, and for all voluntary inpatient treatment of mentally ill persons). We can find no language within the act itself which includes criminal proceedings within the framework of the act, nor can we find any caselaw in the Commonwealth which supports such a proposition.***
[A]bsent any authority to the contrary, we conclude that [a] criminal prosecution [] is not a legal proceeding authorized by the act.
Moyer, 595 A.2d at 1179 (some citations omitted; emphasis in original); see also Zane, 836 A.2d at 32-33 (“[B]y the clear terms of the statute, disclosure to a court is not permitted in any legal proceedings, but only in those legal proceedings authorized by the [MHPA]. Our review of the
Similarly here, because “this exception to the otherwise broad protection of confidentiality of documents only encompasses legal proceedings authorized by the [MHPA]” and not criminal proceedings, this exception does not serve as a basis to permit the disclosure of D.G.s mental health records to the court in the criminal proceeding against Segarra. Moyer, supra; Zane, supra.
Thus, in this case, by the plain language of the MHPA, all documents relating to D.G.s mental health treatment at the Horsham Clinic shall be kept confidential and cannot be released to anyone absent D.G.s written consent. Accordingly, the trial courts order requiring Child Advocate to review D.G.s mental health records and disclose any impeachment evidence to the trial court, and possibly to Segarra and the Commonwealth, was erroneous. Likewise, it was error for the trial court to leave the door open to a possible in camera review by the trial judge, as the MHPA prohibits the release of D.G.s mental health records to anyone without her written consent. See Zane, 836 A.2d at 33 (holding trial courts order compelling
Because the MHPA protects all documents from disclosure, a detailed discussion of whether the psychiatrist/psychologist-patient privilege, codified in section 5944 of the Judicial Code,
We point out, however, that the psychiatrist/psychologist-patient privilege is absolute and the statute contains no exceptions for disclosure. Commonwealth v. Kyle, 533 A.2d 120, 125 (Pa. Super. 1987);
The privilege applies not only to psychiatrists and psychologists, but to any member of a patients treatment team. Id. at 100, quoting Commonwealth v. Simmons, 719 A.2d 336, 343 (Pa. Super. 1998) (“[A]ny oral communication by [patient] in private to any member of the treatment team and used by the team for the purpose of psychotherapeutic evaluation is privileged. Additionally, any reference to such a communication in [the facilitys] files is privileged as well.“) (emphasis in original).
Moreover, “[i]n cases where the [section] 5944 privilege has been found to apply, case law has precluded material from being subjected to even in camera review by the trial courts[.]” Simmons, 719 A.2d at 341; see also Kyle, 533 A.2d at 131 (“Subjecting the confidential file to in camera review by the trial court (as well as the appellate courts and staff members) would jeopardize the treatment process and undermine the public interests supporting the privilege. Simply stated, an absolute privilege of this type and in these circumstances requires absolute confidentiality.“).
Accordingly, any oral communication by D.G. in private to any member of her treatment team at the Horsham Clinic and used by the team for the purpose of psychotherapeutic evaluation is privileged, as well as any
WAIVER
Having concluded that D.G.s mental health records are protected by the MHPA and not subject to disclosure under any of the enumerated exceptions in subsection 7111(a), we examine whether D.G. waived her privilege. As noted supra, at the September 20, 2018 hearing, the trial court concluded that because the Horsham Clinic had already disclosed the records to the Commonwealth, albeit in error, the records were no longer subject to the same level of protection. N.T., 9/20/2018, at 40; see also
“As a general matter, once it is established that records are privileged from disclosure to third parties, the burden shifts to the party seeking disclosure to establish that an exception to the privilege exists which would allow the disclosure.” In re Fortieth Statewide Investigating Grand Jury, 220 A.3d at 568 (citation omitted). Thus, the burden rests with Segarra to demonstrate that D.G. waived the privilege conferred by statute.
As our Supreme Court recognized in Zane,
[t]he importance of confidentiality cannot be overemphasized. To require the [h]ospital to disclose mental health records during discovery would not only violate [the patients] statutory guarantee of confidentiality, but would have a chilling effect on mental health treatment in general. The purpose of the [MHPA] of seeking “to assure the availability of adequate treatment to persons who are mentally ill,”
50 P.S. § 7102 , would be severely crippled if a patients records could be the subject of discovery in a panoply of possible legal proceedings. Moreover, to release such documents for review during discovery, only to have an appellate court reverse such decision on appeal, would result in the confidential nature of the records being forever lost.
Zane, 836 A.2d at 34 (emphasis added); Kyle, 533 A.2d at 126 (“Because the information revealed by the patient [during mental health treatment] is extremely personal, the threat of disclosure to outsiders may cause the patient to hesitate or even refrain from seeking treatment.“).
given the strong legislative policy reflected in [s]ection 7111 [of the MHPA] to keep mental health treatment records confidential, implicit waiver of this privilege is strongly disfavored and has been recognized by our Court in only one circumstance – where a plaintiff initiated a civil action and sought to use [s]ection 7111 to shield disclosure of mental health treatment records, which he could reasonably have foreseen would be relevant given that his mental health was directly implicated by his cause of action. Octave[ ex rel. Octave v. Walker, 103 A.3d 1255 (Pa. 2014)]. What was critical to our disposition in that case, however, was the fact that the individual asserting the privilege had placed his mental health at issue by initiating the case, and, thus, considerations of fundamental fairness were implicated, given that our Court did not want to countenance using this privilege as an “offensive” shield for a party to gain a tactical advantage in civil litigation. Octave, 103 A.3d at 1263.
Id. at 568 (emphasis omitted).
These considerations are not present here, as this matter is not a civil case, D.G. did not initiate the criminal case against Segarra, and when D.G. sought mental health treatment as a sexual assault complainant, she could not have reasonably foreseen that the records of that treatment would be made available to her alleged perpetrator. See id.12 As our Supreme Court
RIGHTS TO CONFRONTATION AND DUE PROCESS
Lastly, on appeal, D.G. and the Commonwealth contend D.G.s privilege does not yield to Segarras constitutional right to confrontation, while Segarra maintains that the trial court must balance his right to conduct effective cross-examination of D.G. against the privilege. D.G.s Brief at 42-44; Commonwealths Brief at 13-14; Segarras Brief at 13.
“The confrontation clause guarantees an accused the right to be confronted with the witness against him; [and] to have compulsory process for obtaining witnesses in his favor.” Kyle, 533 A.2d at 123, quoting
The [federal] Confrontation Clause does not constitutionally guarantee access to pre-trial discovery. The right to confrontation is a trial right. A defendant does not have a right to discover any and all material potentially useful for impeaching a witness. “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, that the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 [] (1985) (per curiam) (emphasis supplied) (citation omitted). Thus, “the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these [forgetfulness, confusion, or evasion] infirmities through cross-examination....” Id. at 22 [].
Commonwealth v. Herrick, 660 A.2d 51, 60 (Pa. Super. 1995) (some citations omitted). There is no indication in the record here that Segarra will not have a full and fair opportunity to cross-examine D.G. and thus, we do not find denying him access to D.G.s mental health records violates his right to confrontation.
“While the Confrontation Clause does not attach, per se, to pre-trial discovery requests,” “[d]ue process demands that materially exculpatory evidence in the hands of a prosecutor be turned over to the defense.” Id., citing Brady v. Maryland, 373 U.S. 83 (Pa. 1963). “This right, however, does not mean that a defendant has unfettered access to files not in his possession.” Id. at 61 (citation omitted).
Segarras right to access is dependent upon whether the information is protected by statutory privilege. Our research has not uncovered any published opinions which address whether a criminal defendants constitutional rights of confrontation and due process are violated by a denial of access to records under the MHPA, but courts of this state have examined whether a criminal defendant accused of sexual offenses is entitled to access to the alleged victims records, and they have held
Having reviewed the language of the statutory privilege enacted by our legislature and having given consideration to the public policies underlying the absolute privilege as well as the relevant cases in this and other jurisdictions, we find that the interests protected by the privilege are substantial. We are, of course, cognizant of the heavy weight afforded to [a criminal defendants] interest in disclosure of the victims file. Nonetheless, in weighing the public interests protected by shielding the file with those advanced by disclosure, we conclude that the balance tips in favor of non-disclosure. Nor do we believe that our decision today will unduly infringe on the rights of the accused. First, we note that as a matter of constitutional law, our courts have upheld testimonial privileges which bar a criminal defendant from obtaining or using confidential communications. See Washington v. Texas, 388 U.S. 14, 23 n.21, [] (1967); Commonwealth v. Sims, [] 521 A.2d 391, 395 ([Pa.] 1987). Here, the privilege only limits access to statements made during the course of treatment by the psychologist. It does not foreclose all lines of defense questioning. Likewise, the privilege does not unfairly place the defense in a disadvantageous position; like the defense, the prosecution does not have access to the confidential file and, thus, cannot use the information to make its case.
Kyle, 533 A.2d at 129; see also Wilson/Aultman, 602 A.2d at 1298 (“[T]he existence of a statutory privilege is an indication that the legislature
As our Supreme Court has recognized, “[i]t should be readily apparent that the general powers of courts do not include the power to order disclosure of materials that the legislature has explicitly directed be kept confidential.” Commonwealth v. Moore, 584 A.2d 936, 940 (Pa. 1991) (holding Disease Prevention and Control Law protected confidentiality of criminal defendants health records, which were not subject to disclosure under statute, where Commonwealth sought disclosure to determine if defendant was infected with gonorrhea at time of alleged rape of minor victim who was also diagnosed with gonorrhea).
Utilizing the same rationale, we arrive at the same conclusion: a criminal defendants constitutional rights yield to the statutory privilege set forth in the MHPA. In creating the statutory privilege therein, the legislature obviously concluded there is a compelling interest in shielding mental health treatment records from disclosure except in limited circumstances.
The very existence of the unambiguous legislation of the MHPA signifies the strength of the privilege, and the legislature clearly determined that disclosure of mental health treatment records in legal actions or other proceedings is only relevant in “involuntary and voluntary mental health commitment proceedings.” Moyer, supra, at 1179. The “clear mandate of the statutory privilege” under the MHPA “is not overcome even by the constitutional rights of a criminal defendant.” See Wilson, supra, at 295; V.B.T., supra, at 1329.
As the above discussion demonstrates, because D.G.s mental health records are not subject to exception or discovery under the MHPA, and because D.G. has not consented to the records disclosure, Segarras constitutional rights are not violated in protecting the records from disclosure and in camera review.
For all of the foregoing reasons, we find D.G.s mental health records are privileged and cannot be disclosed to anyone, or be subjected to in camera review by anyone, without D.G.s consent.
Order reversed. Jurisdiction relinquished.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/20
Notes
(a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.