*1 A.2d rel., COMMONWEALTH ex Dale PLATT v. PLATT, Appellant.
Janet L. Superior Pennsylvania. Court of 4,
Argued Dec. 1978. May Decided 1979. Reargument Aug. Denied 1979. Appeal
Petition for Allowance of Denied Oct. *4 Thomson, Lancaster, Deborah H. for appellant. Chillas, Lancaster, William E. for appellee. PRICE, WATKINS,
Before SPAETH JJ.
WATKINS, Judge:
This case comes to us on from appeal the Court of Com- mon Pleas of Lancaster Division, Civil County, and involves appellant’s claim that the court below improperly committed her to a hospital for involuntary emergency psychiatric treatment. *5 3, 1978, committed to the June
On in Lancaster for Hospital Ward of Joseph’s St. Psychiatric a treatment, pursuant petition involuntary emergency 1978, 7, a hearing June appellant’s filed husband. On by review pursuant a mental health officer was held before 7303, Procedures Act a section of the “Mental Health 50 P.S. 9, 9, September became effective of 1976” which Act July at hearing for an informal provides Section 1976. Said of psychiatric who is to be in need person alleged which the is an which hearing attorney treatment afforded of Pleas or a of the Court Common Judge conducted aby At health review officer. the conclusion mental must make a or review officer hearing judge informal is in need continued as whether finding person treatment is and if he finds that such treatment involuntary this section the certify. person needed he must so Under “se- until he is no longer committed involuntarily treatment”, or in need of disabled verely mentally no than longer can be committed for event any he to 50 P.S. pursuant unless is committed twenty (20) days 7304, 50 P.S. 7303(b). 7202 or P.S. the mental 17, 1978, hearing informal
After June issued a health review officer who heard for period certification for extended (20) period the maximum for in twenty provided days, County to the Lancaster appealed Act. then Appellant Pleas for review of certification Court of Common for a review of 7303(g) provides to 50 pursuant P.S. aby mental health officer certification issued any of the Court Appel On June judge. Judge Anthony County hearing held Common Pleas Lancaster 13, 1978,appellant June filed affirmed the certification. On Stay an Application an our Court and filed appeal Lancaster County on June Pending Appeal A Application Court which was denied. similar immediately Hoff- by Judge was denied this Court on June man. raises
Appellant First, three issues on appeal, she contends *6 testimony adduced at informal hearings insufficient so as to enable the review officer or the court to Second, order her commitment. she argues the testimo- ny of her at the informal physician hearing should have been barred as due to the incompetent physician-patient relation- also ship. argues She of her testimony husband at the informal have hearing should been barred due to the principle inter-spousal immunity.
Taking the last issue first we recognize princi ple inter-spousal immunity, as set forth in 28 P.S. 316 and 28 P.S. renders incompetent of one spouse against other in either civil or criminal proceedings. More specifically prohibits P.S. a from spouse testify as to “confidential ing communications” made one spouse other, to the unless the privilege upon waived the trial and 28 P.S. renders one spouse to incompetent testify §317 “against the other” except certain clearly defined situa cases, tions such as divorce spouse actions, abuse feme sole actions, trader and criminal actions brought one spouse against other for to the injury or children of the spouse spouse who instituted the charges. public The policy sought to be enhanced by the is thé privilege preservation of marital harmony and the resultant benefits to from society Hunter, Hunter v. harmony. Pa.Super. therefore, A.2d 401 (1951). issue is whether allowing spouse at a mental health relative hearing to the condition of spouse his/her constitutes a violation of the above The answer principles. is that it does not.
A spouse who testifies at a mental health hearing relative to his/her spouse’s mental condition is not testifying her. “against” Assuming that he is acting good faith the very purpose of his is not to do adverse something to his wife but to her obtain the help that she needs. help While the who spouse help needs the feel that the other spouse is “against” her/him this does not make it so. It is well known that the people from the suffering most severe mental problems are the last ones admit that have they overcom- step that the first in that regard problems There- it as a recognize problem. is to such a ing problem for psychiatric help wife who seeks fore, husband or spouse the other acting “against” more is no spouse his/her his child see a doctor insists that is a who parent than needed treat- child such deplores though dentist even prob- with mental the child nor the ment. Neither is in his best interest. what lems understands seeking in bad faith course, acting if a spouse Of to the subject he would be spouse of the other commitment or sanctions for penalties and civil various criminal However, might possible because it the law provides. other get faith in attempting to act in bad spouse one *7 us compel does not for mental treatment committed spouse to hold that therefore that such is the case and presume to the adversary position is in an spouse the petitioning into law a To do so would be to elevate other spouse. of human great weight runs counter to the presumption of hu- takes an view extremely pessimistic and experience man nature. above, principle basic behind policy
As stated In a harmony. is to enhance marital interspousal immunity are policy mental health proceeding objectives to be of to the spouse help one preserved by permitting to observe position psychiatric other. And who is in a better wife than the other on the of a husband or part behaviour will witnessed of such behaviour spouse? Many episodes we find it to believe that the difficult only by spouse spouse meant to exclude of a Legislature obtaining necessary spouse would assist the other when it 816 and 28 psychiatric adopted care P.S. P.S. as communications” are con
Insofar
“confidential
Legislature
cerned we hold that in
28 P.S. 316 the
adopting
as to his
did not intend to
a
from
prohibit
spouse
testifying
which do
ravings,
ramblings
wife’s incoherent
mutterings,
are merely
not constitute true communications but which
mind.
outward manifestations of a
disturbed
severely
rel. Fink
in Commonwealth ex
Appellant argues
(1975), this Court
Appellant’s have should appellant who treated psychiatrist of the testimony to such objected been excluded because Prior to privilege. of the physician-patient the grounds on appellant’s had threatened attorney hearing, appellant’s violating for and criminal sanctions with civil psychiatrist informal at the testified psychiatrist if the the privilege testimony. to that objections over hearing appellant’s the Act of June arises from privilege physician-patient provides: 328 which 462, 1, 28 P.S. P.L. § shall surgery physics to practice “No authorized case, information any civil to disclose allowed, in any profession- in a attending patient acquired which he act him to to enable necessary which was al capacity, the character tend to blacken which shall capacity, in that except patient of said without consent patient, of the on damages cases, patient, such brought by civil injuries”. of personal account testi a physician’s render incompetent
This section does not
examina
from his
which he learned
facts
mony regarding
confidential
bars only
of the
but
patient
tion or observations
Massich
to the physician.
from the patient
communications
541, 10A.2d 98
Co.,
Pa.Super.
v.
Coal and Coke
Keystone
Co., 423
Insurance
Mutual
Panko v.
(1940);
Consolidated
bar the physician’s
does it
1970).
Nor
(3rd
F.2d
Cir.
between a
communications
as to confidential
testimony
such communi
where
client
in civil
patient
proceedings
patient”.
of the
the character
cations do not tend to “blacken
Woodsv.
181, 183
(1936);
A. 432
Marks, 121 Pa.Super.
In re
1965). There
(3rd
Cir.
Co.,347 F.2d
Accident Insurance
scope
physician-patient
fall within the
fore
order to
involve
(1)
must:
of the doctor
privilege
from patient
from communication
gathered
information
tend to blacken
must
(2)
doctor and
in order to
must be met
character. Both criteria
patient’s
several cases
cites
Appellant
the privilege.
rise to
give
stigma
that a certain
recognized
courts have
wherein our
himself
had to avail
to one who has
often attached
the Lebanon
agree
while we
psychiatric help
Estate, D. C.2d
71 &
in Kohr
which stated
County Court
mental
regarding
age
enlightenment
that: “In this
(1976)
*9
due
disorders,
incompetency
is
understood
generally
it
which no
is
over
something
causes
physical
to organic
Thus,
court sees no
the
afflicted has control.
mortal so
the issue here as
need not further discuss
here.” We
stigma
determined that
issue
has definitively
Court
Supreme
our
that,
the
of loath-
meaning
held
“whatever
recently
when it
treatment does not evidence
disease, psychiatric
some
“B”,
of Dr.
Appeal
In re
existence of such a condition.”
Roth,
471,
(1978).
psychi-
Pa.
Furthermore
who exam
physician
for the
of the
itself provides
Act
provides
The
ined the
to be committed.
person
rele-
“Information
informal
.
.
.
hearing
during
disabled
severely mentally
whether the
person
vant to
reviewed,
the reasons
including
shall be
in need of treatment
neces-
is considered
continued involuntary
made
who
physician
shall be
explanation
sаry. Such
in terms understandable
and shall be
examined
provide
The Act
on to
7303(c)
goes
P.S.
layman”.
the physi-
and question
with the
to confront
patient
right
Thus
process right.
due
cian,
patient’s
thus protecting
at
treating physician
requires
the Act
subse-
adopted
and since this Act was
hearing
the informal
physician-patient privilege
establishing
to the Act
quent
Act)
(Mental
this
Health
section
presume
we must
establishing
physician-
over the statute
takes preference
May
Act of
Statutory Construction
patient privilege.
of all
seq.
object
Art.
501 et
1937, P.L.
P.S.
of statutes is to ascertain
and constructions
interpretations
and every
intention of the Legislature
and effectuate the
intent, if possible.
to effectuate that
law is to be construed
things,
with the same
When two statutes deal
P.S. 551.
*10
will
when
other
in one
control
the
provision
particular
v.
of Millersville
Borough
as
that matter.
statute is silent
(1971),
Appellant 1976, for the proposition Act of Health Procedures testi- the psychiatrist’s renders privilege physician-patient that: provides That section incompetent. mony shall be in treatment concerning persons “All documents written con- and, the person’s without confidential kept contents disclosed released or their sent, not be except: anyone .
“(1) . ..
“(2) . . . authoriz- proceedings of legal a court in the course
“(3) *11 act; this by ed ...”
“(4) However, to contrary with documents. This section deals the proposition supports this section assertion appellant’s the infor- during is admissible physician’s that the hearing “legal pro- is a because the informal hearing mal subsection act”. 50 7303and this P.S. by authorized ceeding confiden- to the exception constitutes an of this section (3) rule. tiality of Penn- above, the Court Supreme as discussed
Finally, privilege physician-patient has decided sylvania “B”, In re testimony. Appeal to apply psychiatric does not who case a Roth, psychiatrist In that supra. of Dr. Loren from a escaped son had juvenile a woman whose had treated automobiles refused to stolen four juvenile facility to release mental condition or to the mother’s relative testify held to hearing thereto at a records relative the hospital interests would juvenile’s best whether dеtermine The psychiatrist him with his mother. by placing served after refusing testify fined for to held in contempt was to court. He had refused to do so ordered being when privilege of physician-patient on the grounds testify of this informa- to consent to the release the mother refused privi- that the physician-patient The court concluded tion. However, of the records. the disclosure prohibit did not lege concerning her the court did conclude to How- right privacy. was barred her medical records one here Roth, is unlike the supra, ever, the situation explicitly no statute involved there was that in Roth testimony. the psychiatric required is not right, like other privacy, every to right which the court Roth, the basic issue with In
absolute. The moth of the juvenile. was the best interests concerned which the court were one avenue only records hospital er’s Al child’s best interests. determining could explore only records were relevant, psychiatric the mother’s though in its the court which would aid of evidence one piece determining other means ultimate decision. Since court our to the trial best interests were available child’s right in her the mother’s interests held that Supreme Court in determin interests of the state outweighed privacy held Therefore, the Court interests. juvenile’s best ing Dr. Roth to reveal compel could not that the trial court her mental condition records hospital pertaining mother’s In our privacy. because of her right ovеr her objections case”, condition “mental health the mental case, as in any of the proceeding. is the essence or gravamen the patient of the pro is the very purpose that condition Determining incompetent hold that a psychiatrist and to ceeding, would proceeding at commitment an who has is the psychiatrist indeed. After all it incongruous *12 mental to determine a person’s and training expertise whose above, it is the psychiatrist condition. As stated unscrupulous and an patient stands between testimony in need who is not person to commit a spouse attempts who exclude we hold could patient of treatment. Were to commitment his in an psychiatrist’s we would of his to right privacy on the proceeding grounds or such off the books” “wiping proceedings effectively hands of laymen issues into the important else these placing even are to render or ill-equipped opinions who generally to mental state. Needless person’s observations relative to nor patient this the interests of the would serve neither say those of its which has an interest in to it that seeing society obtain members in need of treatment for mental disabilities case to do and therefore hold that in this it. This we refuse interests must to the privacy give way the patient’s right treated. For these reasons society having person permitted we hold that the should have been psychiatrist hearing. at the informal final assertion is thаt the testimony Appellant’s evidence adduced at the informal was insuffi hearing and enable the review officer or the court to order cient so as to With this contention we agree. her commitment. subject involuntary emergency to be person For a treatment it must be shown at the informal examination and disabled; (1) is: person severely mentally hearing immediate treatment. A severe- (2) person in need of illness, when, disabled as a result of mental mentally ly self-control, judgment, to exercise person’s capacity affairs and social discretion in the conduct of his/her rela- tions or to care for his/her own needs is so lessened personal a “clear poses present danger” or that he/she impaired 7301(a). of harm to others or to himself/herself. 50 P.S. (b) of 50 on to enunciate the Paragraph goes P.S. what constitutes a “clear and determining standard for A clear and person to the to others. present danger” has presented to others is when the present danger inflicted or thirty (30) attempted within the past days inflict serious harm on another and there is a reasona- bodily ble that such conduct will be probability repeated (emphasis case, ours). In the instant of the was spouse rather and unclear due to several factors disjointed among that the transcript proceedings which was the fact a member of the staff of the prepared by appellant’s (Central Services), office Penn from a attorney’s legal Legal This was the trial tape proceedings. permitted by measure had emergency court as an because taken an from the review officer’s certification and appeal had to be heard within 72 hours which appeal apparently to the court While we presented problem stenographer. *13 a transcription understand the of necessity quick in such cases we condemn testimony outright practice staff, his or co-work- or her party’s attorney permitting any any transcript to the official ers, employees prepare proceeding. formal however, testify, husband did
Appellant’s in the jar one threw a Noxzema on occasion appellant him. son bathroom, Appellant’s it at broke and screamed appel it is his also and clear from testified one of upon serious harm attempted bodily lant had inflict of the hearing. Appellant her within thirty days children her and the had a at one of children heavy thrown chair child, chair, upon impact it missed the smashed although doing with also testified and admitted Appellant a wall. burned some appellant this. The son also testified that had angry was in a barrel when she belongings his brother’s during other children him, had struck the frequently tantrums, his sister with and had strike attempted temper she a admitted this but testified that broom. also Appellant inflict harm her children. bodily did not mean to serious on stolen appellant The also demonstrates thаt had record that she had previous from her children and had money acts While the above-mentioned psychiatric commitment. review or a court would be sufficient for a officer certainly that the posed present conclude “clear com to others the court erred in having appellant danger” at the because the evidence only expert presented mitted “Part II: Ex Physician’s was certificate labeled hearing as part original amination” which attached This reads as petition for treatment. certificate follows: thought special Patient is she had
“Findings: delusional— is D.C. Mood position foreign Washington, affairs no has into the inappropriate. insight elevated She fact that she is ill. has been irresponsible, Behavior has been and others.” danger herself Act, however, provides 303(c) thereof Section as to the why involuntary reasons informal considered is to be at necessary produced given The reasons such are to be hearing. by physician *14 representa- and the or his patient the patient who examined alia, to ask of physi- inter right, questions has the tive 7303(c). The certificate which 50 P.S. hearing. at the cian require- does satisfy to the not petition was attached why as to give must reasons physician ment that was necessary patient because the treatment involuntary However, to question physician. of his right deprived did (the appear psychiatrist) treating physician aрpellant’s and was to prepared give testimony. the informal hearing at to the threat sanctions made legal It was because of only counsel not that he did as the physician appellant’s Therefore, that might argued condition. it to appellant’s to her had her right require own actions waived appellant hearing. her This at commitment a physician’s however, because the time, not at this we need decide issue with its transcript hearing, state of the confusing improper transcribing “inaudibles” and the method many above, we remand as testimony, require discussed case to the court below. this reason, this the court we remand case to below
For this opinion. During consistent with this proceedings for further and her psychia- proceedings appellant’s spouse further any completely to as permitted testify fully trist shall be by appellant applicable asserted are privileges various here.
SPAETH,
J.,
dissenting opinion.
concurring
files a
SPAETH,
Judge, concurring
dissenting:
an
should be remanded for
eviden-
I
this case
agree
whether
was properly
determine
tiary hearing
appellant
involuntary
treatment
emergency
committed for extended
I also
seq. (Supp. 1978-79).
et
agree,
under
P.S.
§
below,
that at
explained
different
reasons
but
for
I
how-
may testify.
disagree,
husband
hearing appellant’s
ever,
ability
appellant’s psychiatrist
regarding
part
part.
I concur
and dissent
testify. Consequently,
-1-
3,1978,
psychiatric
was admitted to the
appellant
June
On
for
Hospital
involuntary
Lancaster
Joseph’s
ward
St.
and treatment
50 P.S.
pursuant
emergency examination
examina-
emergency
This
provided
section
§
hours,
no
unless within the
longer
could extend
than
tion
voluntary
was admitted to
treatment
72 hours
7202, or a certification
extended
to 50 P.S.
pursuant
pursuant
filed
emergency
*15
voluntary
not
7303.1
was
admitted
Appellant
P.S. §
Mast,
hour
Dr. Truman
treatment,
period,
but within
on
Joseph’s Hospital,
the staff
St.
apparently
a physician
appellant.
for the certification of
applied
7, 1978,
application
was held on the
hearing
June
On
officer,
required by
as
50 P.S.
before a mental health review
but,
at the
as the
7303(c).
appeared
hearing
Mast
Dr.
§
the certification
notes,
support
did not
in
testify
majority
had received a letter from
he
hearing
because before
asserting
was
appellant
attorney stating
appellant’s
her
treating physi-
“her
as
privilege against [his]
“to
cian,”
he
he would
himself
expose
and that if
testified
N.T.
civil
6/7/78
liability
damages.”
possibility
he
Dr.
stated at the
had been
hearing
at 2.2
Mast
testify
an
for
not to
attorney
hospital
except
advised
order,
not
evidently
Ap-
under court
which
obtained.
on
pellant’s
appellant
husband testified that
one occasion
at
jar
had thrown a Noxema
in the bathroom and screamed
legislature
recently
section to
1. The
has
amended this
extend
emergency
period
involuntary
for
examination and treatment
to 120
26, 1978,
302(d),
Pa.Leg.Serv.
hours. Act of
P.L. No.
§
Nov.
(1978).
appellant’s attorney
majority’s
Dr.
The
threatened
2.
statement
hearing,
see at
testified at the
Mast
criminal sanctions if he
apparently
on
is without basis in the record. This statement
based
Brief,
copy
Appellee’s
is a
of a letter
Exhibit A
which
sent
Community
Joseph’s Hospital
Legal
staff of
Services to the
St.
hearing
ap-
of another individual
connection with the commitment
hearing
present
proximately eight
before the
involved
months
explained
Appellee
the relevance of this letter to this
case.
has not
case.
further
he did not
indicates that
The record
him.
by appel-
raised
objections
of repeated
because
incidents
relevancy
attacking
competency
attorney
lant’s
two
a week or
testified that
son
testimony. Appellant’s
his
broom,
with a
hit his sister
had
hearing appellant
before
not strike his
chair did
at her. The
a chair
had thrown
son also said
The
sister,
upon impact.
it broke
but
belongings,
and taken his
into his room
had broken
appellant
in a
clothes
of his brother’s
some
she had burned
and that
about
something
when he said
his brother
struck
barrel and
petitioner’s
of the
was the extent
4. This
N.T.
at
it.
6/7/78
her own
testified on
Appellant
appellant.
against
evidence
witnesses.
four character
behalf, and called
emer-
extended
appellant
certified
review officer
On
days.
to exceed
gency
pleas
common
the court of
9,1978,
petitioned
June
certifiсation,
under
P.S.
provided
as
for review
following
June
was held on
hearing
A
7303(g).
has
Appellant
the certification.
affirmed
the lower court
order.3
from this
appealed
custody on
she was released from
Appellant
brief that
states in her
*16
however,
agree,
her
27,
I
that
Appellant’s Brief at 24 n.
June
appeal.
ex rel. Bielat v.
In
her
Commonwealth
release does not moot
Bielat,
446,
(1978),
a
we held that
Pa.Super.
Appellant her certifi- support to was insufficient officer review health I treatment. emergency involuntary for extended cation agree. was re- officer review appellant, certify order to
In disabled mentally severely appellant to find that quired 50 P.S. treatment. of continued need when, disabled mentally is severely A 7303(c)(1). person § present illness, a clear he presents mental as a result of to In order 7301(a). or others. 50 P.S. to himself § danger danger, present a clear and presented that appellant find 30 days that within to find first officer had review inflict to attempted inflicted or had either hearing appellant also See 7301(b). another. 50 P.S. harm to serious bodily v. Gigiacinto, Pa.Super. ex rel. Gibson Commonwealth J., No dissenting).4 (HOFFMAN, (1978) 53, 395 A.2d serious inflicted that appellant offered show evidence was children; most, or at husband harm on her bodily harm when she inflicted physical that she evidence showed her sons. struck one of broom and hit her with a daughter involuntary, voluntary nor hospitalization was or show whether the Under the Elizabeth’s. diagnoses the staff at St. made the circumstances, expungement appellant’s in the interest I believe that of her records is substantial. danger present 7301(b) provides clear and also 4. 50 P.S. § 1) attempted establishing has eithеr that a be shown probability unless treat- of suicide reasonable and there is a suicide Act; attempted 2) or or mutilated ment is afforded under probability severely reasonable and there is a himself mutilate the 3) evidence repeated; a manner as to acted in such will be acts care, unable, supervision the continued assist- without that he is himself, others, is a reasonable and that there care for ance of death, physical bodily injury debil- or serious probability serious days adequate unless ensue within 30 itation would however, evidence, to show no Act. There was afforded under the any danger present herself for presented a clear and of these reasons. *17 Also, the Mental amendments to noted that the recent it should be may danger present provide and Act that clear Health Procedures now be shown establishing has threatened that a acts, in furtherance has acted enumerated commit one of the the threat. Act Pa.Leg. 324, 301(b), P.L. No. of Nov. (1978). Serv. 1094 Compare (1973) (defining “bodily injury” Pa.C.S.A. § and “serious bodily injury” purposes of the Crimes Code): “Bodily injury” “Impairment condition physical — or substantial pain”; bodily inju- “Serious injury” “Bodily — ry creates a substantial risk of death or which causes serious, loss or im- permanent disfigurement, protracted pairment the function of member or any bodily organ.” Thus, the review officer could have found appellant severely disabled only if the evidence established that mentally appel- lant to inflict attempted such bit of injury. strongest evidence to establish this was her son’s attempt testimony that she struck daughter her with a broom and threw a chair record, however, at her. The does not show how hard appellant struck her or on daughter, part what of the body. (The record does show that no hospitalization was required' Also, blow.) as a result of the although admitted appellant testified, that she threw a chair at her daughter, she without contradiction, her, that she did not throw it at directly Moreover, was not to hit N.T. trying 6/7/78 at 11. her. record is devoid of reference to threats made any by appel- lant against her and there family,5 was appellant children, her goaded by so that some repri- mand by appellant against them have been warranted. (For one of example, appellant’s sons admitted that he told appellant that she was “nuts.” N.T. 6/7/78.)
Furthermore, even if we were to assume that the evidence was sufficient show to inflict attempted serious injury daughter, on her the evidence was still bodily insufficient to show that the resulted from mental attempt illness, or that there was a reasonable probability appellant’s conduct would be No repeated. expert psychiat- ric was taken on this point,6 and the incidents words, point appellant’s you 5. At one husband did state: “In other hospital want her out of this back to the kids and threaten the again.” However, say “again” kids N.T. 6/7/78 at 3. he did not any except referred to incident the incidents that have been describ- ed. above, Mast, appellant’s treating psychiatrist, 6. As noted Dr. de- Thus, hearing clined to at the before the review officer. *18 not them- by and son did husband appellant’s related by the point. selves establish insufficient, certifi- appellant’s the evidence was
Because can- emergency cation for extended involuntary errors Nevertheless, of that procedural not stand. because below, relief on the occurred not entitled to appellant the of the mentions that majority state record. present officer was for the before the review transcript hearing of with the office appel- a associated prepared by addition, In it that was at appellant lant’s counsel. appears least for the absence of her husband at responsible partly lower the the June 12 before the court. After hearing officer, was the review counsel hearing appellant’s before husband appellant’s directed the court to serve by on to be held the court June hearing by notice the the by mailing telephoning notice also complied Counsel admitted, however, that when the husband husband. It is whether his attendance would be telephone asked over he need not required hearing, responded at the counsel was probably attend. Brief at 15. This Appellant’s Reply inadvertence, but its effect was that the hus- thoughtless to be band on and was therefore unavailable went vacation attorney representing called as witness either by Re- Lancaster Office of Mental Health and Mental County the court 7303(g) tardation or court. Under P.S. was support allowed to receive new evidence in had appellant’s review officer’s certification. It may had hearing, husband the court desired to attended insufficiency present receive his record testimony, he would exist. counsel asserts that Finally, appellee’s and was hearing, received notice of the June improper irregularities just unable to his case. prepare Given issue, but it discussed, it is to decide this further unnecessary only diagnosis appellant appears psychiatric in the record is request appellant’s invol- found in certification for extended examination, untary emergency Dr. Mast with the lower filed however, diagnosis, entirely conclusory court. That consisted foundation, language, being opinion an without a factual was severely mentally insufficient dis- establish abled.
illustrates the need for a new at which the merits of hearing fash- appellant’s developed proper commitment ion.7 -2-
This long recognized evidentiary Commonwealth has an from each privilege prohibiting spouses testifying against *19 other in judicial (1958)8provides: P.S. 317 proceedings. §
Nor shall husband and wife be competent permitted other, against to each in except proceedings trader, a a brought by wife to declared feme sole and also in those divorce in which except proceedings for service the personal subpoena or of a rule to take depositions upon has been made the or in opposite party, defends, which opposite appears the and which party in other, case either the and may testify fully against except also that in for any proceeding party divorce either be called to the fact of merely prove marriage.
The maintains that one majority spouse is not barred from testifying spouse’s favor other commitment virtue of this statute because who testifies at a spouse “[a] mental health relative to hearing spouse’s his/her mental so, condition is not her.” at 413. This is testifying ‘against’ the because a with mental majority says, “person problems not what is in his best interests.” Id. [does understand] This which is reasoning begs question, appellant whether is a with mental Whether “person problems.” a has Appellee has asked that we direct the lower court on to remand inquire propriety Pennsylvania Legal into the of Central Services appearance Appellee in this case. asserts appointed represent appellant, lower court other counsel and that Services, court, Legal appointed by which was never has been However, improperly representing appellant. propriety Legal appearance propriety appellant’s Services’ is irrelevant civil appeal. Assuming commitment —the issue that has been raised on representation by Legal presents justiciable improper Services issue, assuming representation present further its in the suit, improper, appellee standing bring case was and that has separate redress will nevertheless have to be secured action that properly raises the issue. 23, 1887, 158, 5, 1927, 10, 861, May (c); May 8. Act of P.L. cl. P.L. No. 1.§ the hearing; not until after established problem mental other against must may testify one spouse whether The does majority, apparently, hearing. decided before the in good faith believe that spouse may one recognize but be problem, entirely has a mental spouse the other instance, it is incontrovertible that In such an wrong. against if would be testify, testifying allowed spouse, one this offers no solution for majority spouse. the other nor, I dilemma, reasoning, has been created its Here, the husband sought can it. suggest, wife, him, wife seeking opposed of his commitment joined The issue liberty. being of commitment her instead became adver- the husband and wife proceeding, in a legal ex rel. Finken in the sense. Cf. Commonwealth saries truest Bal- (1975); A.2d 764 In re Pa.Super. Roop, v. (civil commit- (1973) 482 F.2d U.S.App.D.C. lay, analo- are nature proceedings adversary closely ment gous to criminal proceedings). *20 a in commitment
Still, I not bar spouse’s testimony should has Legislature tradition- proceedings, my opinion, for in in an to proceedings, exception such recognized ally The Health Proce- exists. Mental inter-spousal immunity file a Act is as to who ambiguous may dures somewhat for court-ordered treatment petition requesting involuntary Act another,9 but Mental Health and Retardation Mental 1966, it, more it was preceded specific; provided: disabled, to mentally Whenever a believed be person in or of such mental by need of care treatment reason a disability, petition may presented ... in which a pleas county person
court of common or is, for his -immediate examination commit- resides . ment relative,
(1) petition may by guardian, be made a loco friend, individual in standing parentis may 7304(c)(1): responsible party petition “Any P.S. file a 9. See 50 § involuntary pleas requesting court court-ordered in the of common already any person . .” in treatment . for (Emphasis added.) 300
(2) The shall set forth petition the facts which the upon petitioner bases his belief of mental disability and the efforts made to secure examination of the a person by physician. 20,1966, 3, IV,
Act of Oct. No. P.L. art. Special Sess. (1969). 4406 P.S. § The 1966 Act was preceded in turn acts that were by based, 13,1836, the Act of ultimately part, upon June P.L. 586. The 1836 Act a provided that commission could lunacy relative, be ordered “upon application, of a writing, named, blood or therein marriage, person or a person interested in his estate such [provided application be that] affidavits оf the truth therein stated.” See accompanied by Harner, In re In re 18 Pa.Dist.Reps. Lunacy (1907); Madden, 13 Pa.Dist. Reps. (1904). Case law under the 1836 Act held that one could spouse petitioner be the in a proceeding establish the incompetency other Metz, spouse. Commonwealth v. 5 Pa.Dist.Reps. (1896); Smith, In re 17 Legal Intelligencer (Pa.C.P. 1860). Thus, before act providing for inter-spousal immunity enacted, the Legislature had that one recognized spouse petitioning party could be the in an action to commit the other I see in the spouse. nothing more recent acts that manifests a intent limit legislative this traditional right.10 course,
Of it that all of these argued provisions address of a only ability spouse to bring petition commitment, and not the ability testify at commit- Also, Incompetents’ it is relevant to note that the Estates ofAct provided petition incompetent that a to have a declared guardian appointed spouse, brought alleged incompe- and a could be “the relative, creditor, any person tent’s a debtor or interested *21 alleged 28, 1956, incompetent’s in the (1955) 1154, welfare.” Act of Feb. P.L. Ill, 301; 1957, 11, 794, July 1; 1961, 14, July art. § P.L. § 634, 1; 1967, 9, 390, 175, 1, 3301(a) P.L. (1969) (emphasis added). Oct. P.L. No. § 50 P.S. § § provision repealed; This has since been present provides petitioner may any person the interested in the act be “[t]he alleged 10, incompetent’s welfare.” Act of Dec. 867, 293, 11, (1975). P.L. No. 20 Pa.C.S.A. 5511 It is § § apparent changed provision that this has not narrowed the class of least, persons may bring incomрetency proceedings, who at not so as spouse. to exclude a Barr, Pa.Super. v. Cf. Commonwealth proceeding. ment informa- to make a criminal (1904) (husband permitted he would though even alleged his wife’s seducer against tion trial). Although my at the testifying from prohibited be addressing case issue any failed to uncover research has at a proceed- commitment spouse may testify of whether a in an petitioner traditionally the fact that given ing, pro- to the necessary party is the insanity only proceeding it 15(b) (1945), see 44 Persons ceeding, § C.J.S.—Insane intend- Legislature that the to me a remote possibility seems could be a spouse proceeding ed that in a commitment witness. incompetent but be an petitioner would competent intended to always conviction that the has My Legislature is spouses proceedings to at commitment testify allow considerations. strengthened by additional commitment, First, Legisla- subsequent appellant’s to provide amended the Mental Health Procedures Act to ture emergency that at the for extended hearing mental health judge treatment under section “[t]he if relevant information even any review officer review if he would excluded under rules of evidence it be normally is amend- believes such information reliable.” This indicates, believe, legisla- I ment, its broad language, pro- tive to allow commitment spouses testify policy ceedings.12 26, 1978, 303(c), Pa.Leg.Serv. Act of P.L.No. §
11. Nov. (1978). acknowledge argued I it be this amendment is could “relevant,” only “incompetent,” not addressed evidence, the admission words, spouses not in other that since 28 P.S. 317 renders other, “competent” against does each the amendment not immunity pro- application inter-spousal affect commitment me, however, key ceedings. in the is For word amendment reliable, probative If the is “reliable.” evidence issues introduced, being litigated, then the amendment allows it to even though normally would excluded the rules of evidence. it under Testimony by spouses incompetent it because is not reliable— general as a rule is as as because it reliable other —but policy persuaded Legislature extra-legal considerations have judicial proceedings bar it certain instances. from *22 Second, the Legislature has carved out to inter- exceptions spousal immunity proceedings comparable to civil commit- ment. For example, (1964), P.S. counterpart § 317 in P.S. criminal proceedings, provides that neither § husband nor wife shall “be competent or permitted testify other, each against or in support a criminal charge of to have been adultery alleged or by committed with the other, except ... criminal any proceeding against either for bodily or violence injury done attempted, or other, threatened upon or upon minor children of wife, said husband and or the minor children of either of them, or minor child in thеir any care or or in the custody, care them, or of either custody each shall be’ a competent witness against Thus, the other . .” . . in a criminal case where one spouse is charged the other assaulting children, or spouse the other spouse may testify as to the case, assault. In the present appellant was charged with her children. assaulting Had the Commonwealth brought a criminal action based upon assaults, these her husband would have been competent to testify. Instead of criminal civil proceedings, commitment proceedings were brought. I see no reason to say Legislature intended that a spouse could in a testify criminal case of family violence but not in a civil commitment proceeding, purpose is believed to be generally Also, the salutary. Legisla- more ture allows spouses to against each other divorce proceedings. See P.S. Divorce predicated § on the same acts of family violence as may serve as the basis for a spouse’s civil commitment.13 I believe that this excep- tion, as well as the in 19 exception P.S. demonstrates a desire by Legislature to limit inter-spousal immunity in situations where testimony by spouses essential to the (1955) provides 13. 23 spouse P.S. 10§ that one is entitled to a spouse: divorce if the other have, (e) treatment, Shall endangered cruel and barbarous injured spouse; life of the and innocent (f) indignities Shall have injured offered such to the spouse, and innocent as to render his or her condition intolera- ble and life burdensome . instances, as In members. many protection family notes, acts of violence and emotional intra-familial majority person’s spouse. only will be witnessed disturbance *23 such instances no The spouse’s need commitment in the divorce or context than less in the context. criminal doubt, should, in of privilege “the of case scope
Finally, McCormick, ed. (Cleary Evidence 86 confined.” strictly § 309-10, Forman, 305, 205 1972). Pa.Super. also Kine v. See 1, 3 (1965). 209 A.2d should be spouses
As to the conclusion that corollary allow in commitment I should proceedings, allowed to testify spousal limitations on them to without testify regard the recent in 28 P.S. 316.14 I believe that found § constitutes to Mental Health Procedures Act amendment of civil of in the area repealer provision an this implied commitments.
-3- The holds that communications majority appellant’s disclosure Mast, protected Dr. her are not from psychiatrist, However, at 416-417. by right privacy, constitutional court, party, the lower nor either has majority, neither Mast, Dr. relationship identified the between appellant treating was her psychiatrist, other than he say treated being tell us whether does 7302, or her under section by Dr. Mast before commitment Mast as a result of by began only whether her treatment Dr. provides: P.S. 316 § 28 competent permitted to wife be Nor shall either husband or other, to the communications made one to сonfidential privilege upon the trial. unless this be waived prohibits testimony provision it This differs from 28 P.S. 317 in that § only spouses made while between as to confidential communications they (as opposed general prohibition in 317 § to the are married However, all). barring spouses testifying against other at from each 317, of the termination the bar 316 survives unlike § generally marriage by v. See Commonwealth death or divorce. 260, Borris, (1977); Pa.Super. v. A.2d 451 Huffman Sim- 247 372 370, mons, (1938). Pa.Super. 274 200 A. that commitment.15 The distinction is to a proper crucial of Dr. determination whether Mast at the may testify com- mitment proceedings.16
. The exact dimensions right constitutional to privacy However, remain uncertain. the right encompasses at least three “The different interests. first is the right individual to be free in affairs private governmen- his from tal The surveillance and intrusion. second is the right an individual not to have his affairs private public made government. the right The third is of an individual to be action, free in thought, experience, and belief from govern- Roe, v. Whalen compulsion.” mental 429 U.S. 599 n. 869, 876, The (1977), quoting Kurland, S.Ct. L.Ed.2d I, Private University Chicago (Autumn Magazine *24 1976). Disclosure of appellant’s communications with her would treating psychiatrist clearly implicate second and third of these interests as well as of the first. aspects
When
a
person
a
enters into
relation-
psychotherapeutic
doctor,
with a
he
a
ship
legitimate
has
that his
expectation
in confidence,
communications will be held
unless informed
Josеph’s Hospital.
15. Dr.
testified that
is on the staff
Mast
he
of St.
signature
appears
N.T.
at 1.
I
6/7/78
His
also
in Parts and III of (cid:127)
application
emergency
appellant’s
involuntary
for
certification
extended
Appellant’s
D
treatment. See Exhibit
of
Brief. It would
appellant’s treating psychiatrist during
thus seem that he was
hour
her 72
examination,
emergency
although
the record does
Nevertheless,
explicitly.
not
this
show
we still
not know
do
whether
psychiatrist-patient relationship
Dr.
and
in
Mast
were
a
commitment,
appellant’s
changed
before
72 hour
from a vol-
untary
involuntary relationship during appellant’s stay
an
at St.
' Joseph’s hospital.
purposes
appeal,
necessary
16. It should be noted that for
of this
it is
only
relationships
may
to address
one of a number of
exist
e.,
psychiatrist,
psychotherapeutic
between a
and
i.
relationship
psychiatrist
where the
seeks to treat the mental illness
patient.
my conception
psychiatrist’s profession
of his
For
of what a
entail,
relationships
and the kinds of
could
involved
cases,
1202(3) (Supp.1978-79).
provision
other
see 63 P.S.
This
licensing
psychologists,
deals
serve
of
but can
as a useful
B,
disputes involving psychiatrists.
In
reference
471,
re
482
Cf.
Pa.
J„
(1978) (ROBERTS,
concurring).
305
agreement
General
exists in
to the
the doctor.17
contrary by
confidentiality
commu-
legal
and medical worlds
qua
the sine
non
patients
therapists
nications between
and
“
not
‘Psychiatrists
treatment.
only
of successful psychiatric
conscious,
their
but
pаtients’
their
explore
very depths
Therapeutic
and attitudes as well.
feelings
unconscious
aware-
going beyond
patient’s
effectiveness necessitates
and,
this,
to communi-
possible
in order to do
it must be
ness
”
on the Federal Rules
freely.’ Advisory
cate
Committee
183,
(citation omitted).
Evidence,
(1973)
F.R.D.
241-42
56
degree
with some
“Many physical ailments
treated
might
trust,
did not
patient
a doctor whom the
effectiveness
but
his
confidence
he
psychiatrist
patient’s
must have
confides more
patient
cannot
him.
‘The
help
psychiatric
exposes
else in the world. He
anyone
than
utterly
lays
he
only
directly express;
what his words
therapist
self,
dreams,
fantasies,
sins,
his
his
and his
his
his
bare
entire
”
States,
373, 376,
U.S.App.D.C.
shame.’
v.
Taylor United
J.),
M.
(1955) (EDGERTON,
Gutt-
quoting
F.2d
Weihofen,
the Law 272
macher and H.
Psychiatry
B,
(1978)
re
482 Pa.
most private are made papers; they with an equally legitimate expectation will not they be made public. “ ‘It would be too much expect [patients to confide in psychiatrists without if knew that all they they reserve] all that say learns psychiatrist from what they —and say may revealed to the whole world from a witness — ” stand.’ States, v. Taylor United supra, quoting M. Gutt- macher and H. Weihofen. See also Comments of the Advis- ory Committee on the Federal Evidence, Rules of supra. Thus the very nature of the psychotherapeutic relationship rise gives to the expectation communications will be held in confidence.
Besides
implicating person’s
not to
right
private
have his
affairs made
public by
government, disclosure of com
munications made in the course of psychotherapeutic treat
implicates
ment
the person’s
right
certain
making
kinds
of important decisions to be free from governmental com
or
pulsion
interference.
“Communications between a pa
tient and his
her
psychotherapist often involve intimate
medical
problems
family, marriage, motherhood and fa
therhood, human sexuality, and almost always concern
strong emotional needs of the patient.” Caesar v. Mounta
nos,
1064,
542 F.2d
1072 (9th
1976) (HUFSTEDLER, J.,
Cir.
concurring and dissenting),
denied,
954,
cert.
430
97
U.S.
1598,
S.Ct.
51
(1977).
L.Ed.2d 804
These elements of the
treatment relationship are themselves zones of
rec
privacy
ognized
by
United
Supreme
States
Court to
protected
Constitution. See
v.
Carey Population Services Inter
national,
678, 684-85,
2010,
431 U.S.
97 S.Ct.
307
179, 93
Bolton,
Doe
410
2831,
(1976);
49
788
v.
U.S.
L.Ed.2d
113,
Wade,
v.
410
201
Roe
U.S.
739,
(1973);
35 L.Ed.2d
S.Ct.
Baird,
v.
405
Eisenstadt
705,
(1973);
The Legislature has stated the in civil interests commit- ment of disturbed mentally persons as follows: “It is the policy Commonwealth of to Pennsylvania seek to assure the availability treatment to adequate persons who are ill .” mentаlly . 7102 (Supp.1978-79). P.S. § To achieve this purpose regard to who be persons severely disabled but who mentally decline to submit to treatment, allows Legislature commitment. involuntary noted, It should however, that in such instances involun- commitment, tary is not an simply exercise of the Common- wealth’s parens patriae power, from its arising legitimate concern with the welfare of the individual. Where the individual a poses others, threat to the welfare of involun- tary commitment constitutes an exercise of the Common- wealth’s police powers. See generally Commonwealth ex rel. Finken v. Roop, supra; In re Ballay, supra; Develop- ments Law —Civil Commitment of the Mentally Thus, Harv.L.Rev. 1190 (1974). actuality, interest of the Commonwealth is not to only provide for ill but mentally persons, to remove who persons pose clear to present danger themselves or others to situations where the danger may avoided.
It is apparent that these governmental interests are com- Our pelling. must therefore inquiry upon Legisla- focus ture’s choice of means. More we must specifically, ask whether a decision to invade appellant’s right privacy, by holding her should have psychiatrist permitted been would testify, represent an unnecessarily broad means of achieving the purposes Legislature sought achieve when it provided for commitment. starting I my point take as conducting inquiry In this decisions, have accurate reasonably if we are to belief that commitment, psychi- some against involuntary either words, to some desirable—in other testimony atric commu- to disclose permitted should be degree psychiatrist psychothera- his in the course of a patient made by nications there are some cases where No doubt peutic relationship. that it will itself overwhelming is so the lay many, if disability, severe mental but person’s establish a Often, the most, dangerous will not be so. cases this prove are too lay ambiguous acts established by illness, and that suffering the actor is from mental *28 Such, repeated. is that the acts will be there a likelihood Moreover, indeed, lay case. even where is the present was committa- sufficient to that a testimony prove person is insufficient to frequently that will be testimony ble initially, This will necessary. commitment is that continued prove commitment, signs where be true in instances after certainly to the lay mental illness become concealed person’s instances, will be In psychiatric testimony observer. these issue of best, evidence on the perhaps only, his regained whether has health. person be received at some say psychiatric testimony may To we does must hearings complete inquiry commitment would some de- psychiatric testimony make. Since any right privacy, an invasion of the gree patient’s entail in a the invasion is procured must be way minimized, purposes while the are still Commonwealth’s Act served. I believe the Mental Health Procedures itself be objectives which these ac- provides by may procedures complished. 7303(c) explanation why
50 P.S. states that necessary treatment is considered “shall be and shall be person made who examined the by physician Although provi- in to a this layman.” terms understandable should physicians sion is somewhat as which ambiguous I it intend- this think clear that arafters give testimony, and treated ed that it be who examined given by physician the person 7302(b) to section 7302. pursuant pro- Section vides that a person taken to a treatment for a 72 facility hour involuntary emergency examination shall be examined within 2 hours of physician arrival order to deter- ifmine he is disabled. If it severely mentally is determined that the severely disabled and in need of mentally treatment, treatment emergency begin shall immediately. 7303(a), Id. Section allows the treatment facility to the court of common apply for a 20 extended pleas day commitment, involuntary emergency states that the applica- tion shall the name give “any examining physician” state the substance of his opinion regarding the mental condition of the I think person. in the words implicit “any examining is the notion physician” physician that the shall be a person who is on the staff of the petitioning and who has been facility involved the exami- nation and treatment of the patient. It follows that 7303(c) reference section to testimony by “a who physician examined the persоn” is to a who has in- physician been volved with the person’s examination and treatment during the 72 hour commitment.
The Mental Health Procedures Act is also as to ambiguous the substance of given the exam- ining psychiatrist. Section states: “In no event . communications, shall privileged oral, whether written or *29 anyone However, disclosed to without written consent.” [ ] it would seem inconsistently, the same section in provides another that the paragraph documents the prepared by treatment facility concerning persons treatment bemay released to “a court in the course of legal proceedings act”; this noted, authorized and as section by just 7303(c) an permits examining as to whether psychiatrist the patient is severely mentally disabled and need of continued involuntary treatment. The release of documents to the court and the the testimony by examining psychiatrist reveal, will necessarily directly indirectly, communications made the to his doctors. In by patient treating light of this I think it be said that inconsistency, although the Act and the examining psychiatrist an testimony by permits the concerning patient’s the court of records receipt by in such a condition, presented shall be such evidence mental are patient made the by that the communications manner reading of the Act as possible. as little Such compromised of at psychiatric comports single purpose with the of diagnosis is the give which to commitment proceedings, condition, communications disclose mental patient’s the psychiatrist. made patient provision of other is supported This conclusion patient’s safeguard One privacy. safeguards protect is 7302(c), provides section privacy of the patient’s for facility arrival at the upon person’s that examination, shall he involuntary emergency 72 hour and of his right informed of reasons the examination this Although others. immediately to communicate not be with the waiver of should confused rights notification law, of criminal developed doctrines have the area that Roop, supra, see v. Pa.Su- Commonwealth ex rel. Finken assuming at at n. 339 A.2d per. patient fully and that it informs the proper
notification is will told that the his at the he have been facility, status has the to ask that his commitment authority facility initial hour If beyond patient extended period. notification, understanding any expectation this capable he had his would be held in might have communications Indeed, confidence should be lessened. substantially his with his doctors has been very relationship fact that assumed, coerced, and not weakens the reasona- voluntarily confidence will be main- bleness belief absolute any context, In a distinc- recognized tained. other courts have invol- during voluntary tion between confidences made interviews, recognize and have been reluctant to untary interviews are during involuntary communications made See, Mitchell v. evidentiary g., an e. protected by privilege. 1972); v. (9th 468 F.2d Cir. United States Eyman, (5th safeguard Another Harper, 1971). F.2d 1032 Cir.
the patient’s privilege Section which provides all confidential, treatment records shall be kept and released to a except limited number of specified persons. Even Act allows for the though the release of those records Act, authorized the proceedings confidentiality is not since the court totally destroyed has the power conduct proceedings private with only parties and court personnel if the so present, patient desires. Cf. 50 P.S. 7304(e)(4).
Given these safeguards, and the fact it will be difficult, if not to reach impossible, a proper determination in most commitment proceedings without expert psychiatric Legislature has testimony, used the narrowest possible means to achieve its purposes. To permit the examining psychiatrist under section 7302 to would seem to be the least intrusion upon patient’s right to since privacy, alternative would be only to introduce psychiatric testi- source, from mony another which may available, not be or if available involve might intrusion, an even greater since the only possible source of psychiatric other than based on an treatment would relationship based on a treatment voluntary As relationship. earlier, noted where the submission is volun- has tary, patient a substantial expectation that confidence of his with the relаtionship psychiatrist will not be breached. To breach permit would an represent intrusion upon the patient’s right to privacy greater than where the relationship involuntary. however,
This last point, has a double edge: Although greater expectation in a confidentiality voluntary setting justify introduction of the section 7302 examining psychiatrist’s testimony on the ground that it represents least upon intrusion the patient’s right to privacy, this very expectation of confidentiality heightens the requirement that the confidence not be breached except for compelling state reasons. absent, Such reasons will usually be given
313 his 7302 the court may give the section psychiatrist of a testimony It be claimed might diagnosis. has in a engaged prior, voluntary who psychiatrist if of substantial the patient, especially relationship if duration, decision-making result in better judicial would testimony in to the of section received addition However, is the issue not whether psychiatrist. fact-finder, helpful will be to the the former
by psychiatrist is to achieve the necessary his Com- but whether I cannot find such neces- purposes. legitimate monwealth’s that the has determined that given Legislature the fact sity, no psychiatric where the has had patient previous in cases sufficient treatment, provide a 72 hour examination will a proper and courts can make psychiatrists data on of further of whether the is in need patient determination I am that studies show that treatment. aware are, general, predictions dangerousness psychiatric Diamond, The Prediction of Psychiatric unreliable. See Lit- Dangerousness, (1974); 123 U.Pa.L.Rev. 439 Ennis and wark, Expertise: Flip- and the Psychiatry Presumption Courtroom, (1974). Coins Cal.L.Rev. ping no show that However, predic- I know of studies that better treatment, or that tions are achieved as a result of voluntary of the relation- predict length to on the ability depends in- There be ship patient.19 may between psychiatrist so where interests may stances the Commonwealth’s the former be allowed compelling psychiatrist California, Regents v. testify. Cf. Tarasoff Univ. intends to harm another patient knows supra (psychiatrist instances, however, will be rare. Such seriously). provision it should be noted that the in the Mental
Finally,
safeguards
Health
Act of
protect
patient’s
Procedures
themselves
right
legitimize testimony
cannot
privacy
course,
nothing
prevent
waiving
patient
19. Of
from
his
there
psychiatrist
privacy rights
calling the former
himself. Cf. Com-
Romanowicz,
Pa.Super.
ex
monwealth
rel. Romanowicz v.
(1968).
concerning confidences made in a psychotherapeutic rela- with a former tionship psychiatrist. As Chief Justice context, BURGER out in a related pointed government even employees, discreet, though they may are still government employees. Unless court is to say com- pulsory disclosure of private justified communications is the discreet record of the employees, interests of thе individual cannot be balanced away the absence of a state interest. Nixon v. compelling Administrator of Gener- Services, al supra Or, 433 U.S. at S.Ct. as has *32 been stated elsewhere in different slightly terms:
The essence of more, is no privacy less, no certainly than the freedom of the individual pick and choose for himself the time which, and circumstances under and most which, attitudes, the extent importantly, beliefs, his behavior and are to be opinions shared with or withheld from others. Brim,
Ruebhausen and Privacy Research, and Behavioral 65 Colum.L.Rev. 1188-89 (1965), quoted Lora v. Bd. of Ed. City York, of New at 571. supra The patient’s interest in choosing circumstances, if any, under his confidences are to be divulged strangers does not evaporate because the merely number of strangers is fewer rather than greater. remand, on I should
Consequently, direct that Dr. Mast might on the basis of information obtained as a result of appellant’s commitment under section 7302. I should also direct that if Dr. Mast knew appellant prior to her commit- ment, he also might testify on the basis of information role, obtained outside his if as any, appellant’s treating psychiatrist provided that such information was not obtain- —
ed as a result of a confidential relationship appellant, but that he might not testify on the basis of information obtained as a result of a psychotherapeutic relationship that he or any other doctor engaged in with appellant, in which appellant entered voluntary with the expectation that the confidence of the relationship was absolute.