Medical Privilege: Protecting Yourself When It No Longer Exists In A Criminal Investigation

A few days ago, A new client retained my services concerning potential charges for sexual exploitation of a minor. That is Arizona’s fancy label for anyone accused of possessing of child pornography. The most troubling aspect of my new client’s case is how it was brought to the attention of law enforcement.

Generally speaking, these cases are normally discovered when law enforcement is searching/phishing for open “shareware” that permits the discovery of the images or movies on an open computer system. Alternatively, I have had cases discovered by computer repair shops that must report the presence of the images if they locate them when doing work on your computer. And, in a few cases, I have had the “soon to be ex” report locating the images on the computer and calling police.

Arizona Revised Statute 13-3620 requires any person to report abuse to a minor if they reasonably believe the injuries are the result of abuse or neglect. If the injuries are truly the result of an accident, there is no obligation to report. And, under that statute, the possession of sexually exploitive images is abuse (even if the child’s identify is not known).

There are limited exceptions:

  1. Clergy do not need to report the content of a confession, but must report actual observation: they see the bruising or malnutrition etc…
  2. Physicians, behavioral health professional, psychologist, psychiatrist, counselor, teachers, child welfare workers, must also report if they believe their observations of the minor are consistent with physical injury or abuse not caused by an accident;
  3. PARENTS, STEPPARENTS, AND GUARDIANS, must also report if they believe their observations of the minor are consistent with physical injury or abuse not caused by an accident; (it is this statute that prosecutors will frequently go after the “non-injuring” parent who permits their kid to be around the drug use or abuse of the other adult in the home)

But, This Case Was New For Me in Medical Privilege Phoenix

I have been defending client’s for more than two decades. I have referred numerous clients to mental health professionals for counseling and treatment prior to any law enforcement involvement. Many of my clients understand they have a problem, need help, and seek the assistance of a counselor or psychologist/psychiatrist. And for two decades, I have never had to deal with the mental health professional turning the case over to law enforcement.

Although they have a legal duty to do so, experienced counselors can treat without obtaining the information necessary to force the reporting requirement. Unfortunately for my new client, his psychologist decided to not only discuss the general issues for counseling, but elected to become an investigator by delving into the specifics of his conduct. In his case, the psychologist inquired about the number of times he viewed the images, how and where he surfed the internet, whether it was from home or a mobile device, and the specific types of images. NONE of this was necessary for treatment, but all required the psychologist to report the matter to police.

Where Was The Informed Consent?

Client’s seeking mental health assistance are like any other patient in a medical setting: they are entitled to informed consent. Generally, that consent is a generic statement on the intake paperwork that you must sign before seeing the provider.

When meeting with the provider, communicating the GENERAL basis of the problem, the provider than has a couple of options. The majority of professionals at this point will explain their reporting requirements. THIS IS DONE PRIOR TO YOU PROVIDING THE SPECIFICS OF YOUR MATTER. After being advised of their reporting requirements, you can structure your answers, and they can structure their questions to avoid reporting the matter to law enforcement.

Unfortunately for my new client, his provider failed to provide him informed consent and failed to not only provide the necessary treatment he was seeking, but also opened up a criminal investigation.

Tips For Seeking Treatment

Many of us have benefitted from consulting with a mental health professional. And, you should not be afraid to do so. In my work handling criminal defense, I often have clients seek counseling for underlying depression and anxiety. In some cases, the underlying events are their feelings of shame or guilt for not reporting a crime. You can receive treatment, but need to understand the limits of the information you can provide.

With that in mind, when seeking mental health assistance, make sure you ask them the following:

  1. How much experience do you have treating people for my problem?
  2. When do you have to report anything to law enforcement?
  3. Can you treat me without knowing all the specifics of my conduct?

Your mental health professional needs to be your therapist, not your investigator. If you have concerns about the limits of your statements, you must ask them. And, if you still have concerns about the underlying criminal conduct, please consult with experienced counsel immediately.

For any concern dealing with a felony or misdemeanor prosecution, please schedule your free consultation with Howard Snader. Mr. Snader is a Board Certified Criminal Law Specialist. If you or anyone you know has been accused of any felony or misdemeanor, please call him at (602) 899-1596, email him at Howard@SnaderLawGroup.com or visit https://www.snaderlawgroup.com.

 

 
By | 2016-02-29T12:00:07+00:00 February 29th, 2016|Criminal Investigations|Comments Off on Medical Privilege: Protecting Yourself When It No Longer Exists In A Criminal Investigation