Ex parte Northwest Alabama Mental Health Center and Skip Newman. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Sheila Yaw, as mother and next friend of Lawrence Neil Broadhead, an incapacitated person v. Northwest Alabama Mental Health Center et al.)
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2010-2011
Ex parte Northwest Alabama Mental Health Center and
PETITION FOR WRIT OF MANDAMUS
(In re: Sheila Yaw, as mother and next friend of Lawrence
Neil Broadhead, an incapacitated person
Northwest Alabama Mental Health Center et al.)
(Lamar Circuit Court, CV-08-900030)
corporation ("Northwest"), and its executive director, Skip
Newman, petition this Court for a writ of mandamus seeking the
vacation of an order of the Lamar Circuit Court that required
them to produce the mental-health records of Northwest patient
We grant the petition.
Facts and Procedural History
In the fall of 2007, Lawrence Neil Broadhead was admitted
to Bryce Hospital, a State-operated mental-health facility,
remained a patient of Bryce Hospital until February 19, 2008,
when he was transferred to a mental-health facility operated
Johnson was also a patient at The Hope Residential Facility.
February 19, 2008, through February 29, 2008.
time, Johnson allegedly beat Broadhead so severely that, since
the alleged assault, Broadhead has remained in a semi-comatose
Yaw asserted that the defendants had negligently or
The complaint also asserted claims against the State
Department of Mental Health and Mental Retardation, which
wantonly breached certain duties allegedly owed Broadhead,
security measures to ensure Broadhead's safety, the duty to
properly supervise Johnson, and the duty to properly train,
monitor, and supervise Northwest's employees.
Johnson was not
named as a party to the action.
During discovery, Yaw filed a request for the production
of Northwest's records pertaining to Johnson.
Newman objected to the request, asserting that the requested
See Ala. Code 1975, § 34-26-2; Rule 503, Ala. R.
In response, Yaw filed a motion to compel Northwest and
Newman to produce the records. 2
Northwest and Newman filed a
brief in support of their argument that Johnson's records were
materials before us on this petition for the writ of mandamus.
In response to the trial court's request that Yaw provide it
commissioner of the Department; and Charles Cutts, who was the
director of Bryce Hospital when the incident involving Johnson
Yaw also had subpoenaed similar records pertaining to
Johnson from the State Department of Mental Health and Mental
with a memorandum explaining why she believed the records at
issue were discoverable, Yaw filed a "letter brief" in which
"The only issue before this court is whether the
records kept by Defendant [Northwest] while Mr.
Johnson was in its custody are privileged and
Because the Defendant
has objected to the discovery of Mr. Johnson's
mental health records, it must establish that all of
the records withheld from discovery are in fact
privileged. See Swain v. Terry, 454 So. 2d 948, 953
(Ala. 1984) ('The burden of showing the confidential
character of a communication rests on the party
objecting to the introduction of the evidence.').
In an attempt to meet this burden, Defendant has
asserted the psychotherapist-patient privilege found
under Rule 503 of the Alabama Rules of Evidence.
"Rule 503(b) of the Alabama Rules of Evidence
"'A patient has a privilege to refuse to
disclose and to prevent any other person
communications, made for the purposes of
diagnosis or treatment of the patient's
mental or emotional condition, including
alcohol or drug addiction, among the
patient, the patient's psychotherapist, and
persons who are participating in the
diagnosis or treatment under the direction
of the psychotherapist, including members
of the patient's family.'
"As the leading treatise on Alabama evidence
"'This privilege is intended, as its
confidence in the patient and encourage him
physician as to his symptoms and condition,
by preventing the physician from making
public information that would result in
humiliation, embarrassment, or disgrace to
the patient, and [is] thus designed to
promote the efficacy of the physician's
advice or treatment. The exclusion of the
evidence rests in the public policy and is
for the general interest of the community.'
"C. Gamble, McElroy's Alabama Evidence § 414.01(1)
(5th ed. 1996) (quoting Ex Parte Rudder, 507 So. 2d
omitted). This being true, the question as to when
necessarily depend on 'public policy' and 'the
general interest of the community'; or rather, the
confidential character of patient-psychotherapist
communications must yield when its disclosure is
essential to protect the public interest of the
(First emphasis in Yaw's brief; second emphasis added.)
then proceeded to make a "public policy" argument that "Mr.
Johnson's right to have his mental health records concealed"
must yield to "the public interest in safety."
argued that the records should be discoverable because, she
argued, they were "essential to a just determination of the
defense had been raised by Johnson in a collateral criminal
proceeding and the raising of that defense had effected a
waiver of the privilege. 3
In September 2009, the trial court issued a protective
order requiring Northwest to submit the records at issue to
the court for an in camera inspection. 4
The protective order
"After conducting an in camera review, the Court
shall designate which portions, if any, of said
records are material and relevant to the issues of
this cause, and are not otherwise available to
Only those portions of said records which
In her letter brief, Yaw did not contend that Northwest
and Newman lacked authority to assert the psychotherapistpatient privilege on behalf of Johnson or that the assertion
of the privilege by Northwest and Newman was not being made on
behalf of Johnson. See infra note 11.
The order also required the submission of records
pertaining to Johnson that were maintained by the State
Department of Mental Health and Mental Retardation. See supra
Further, the order provided that the parties must
"maintain the confidentiality of" the records, and it limited
disclosure of the records to the court, the parties'
respective counsel, persons with prior legal access to the
records, "court officials involved in the litigation," and
"persons designated as trial witnesses ... to the extent
reasonably necessary in preparing to testify or actually
giving testimony, provided such persons are directed to keep
confidential the matters protected by this order." The order
also stated that any of the records that were "admitted into
evidence or otherwise made a part of the record in this case
shall be placed under seal and shall not be made a part of the
public records of this case."
are designated by the Court shall be made available
to the parties."
Northwest and Newman filed a motion requesting that the
trial court reconsider its September 2009 protective order and
that the court issue an order protecting the records at issue
from disclosure or production. 5
The trial court denied the
protective order, Northwest apparently submitted Johnson's
records to the trial court for an in camera review in response
to the protective order.
In January 2010, after reviewing the
records, the trial court entered an order finding that "all
records are materially relevant to the issues pending herein"
and ordering that Johnson's records be provided to Yaw for
inspection and copying.
The trial court further ordered that
shall be restricted to this litigation as permitted by the
[September 2009] Protective Order."
The State Department of Mental Health
Retardation joined in the motion to reconsider.
Northwest and Newman filed the present petition for a
writ of mandamus in response to the trial court's January 2010
Standard of Review
This Court has held that it reviews by petition for a
writ of mandamus a trial court's discovery orders only "[i]n
certain exceptional cases"; one of those circumstances is
"when a privilege is disregarded," or allegedly so.
Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003).
"'Mandamus is a drastic and extraordinary writ, to
be issued only where there is (1) a clear legal
right in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court.' Ex parte Integon Corp.,
672 So. 2d 497, 499 (Ala.1995)....
Our review is
further limited to those facts that were before the
trial court. Ex parte American Resources Ins. Co.,
663 So. 2d 932, 936 (Ala. 1995)."
Ex parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala.
The issues presented in this case concern the parameters
of an evidentiary privilege and, in particular,
law recognizes contended-for exceptions to that privilege.
Such questions are matters of law.
Farm Family Cas. Ins. Co., 273 Conn. 33, 38, 867 A.2d 1, 4-5
(2005)("Whether the trial court properly concluded that there
insured has made an allegation of bad faith against an insurer
... and, if so, whether it properly delineated the scope and
contours of such an exception, are questions of law."); State
determination whether a particular testimonial privilege or
exception exists ... is a question of law which this court
reviews de novo.").
Accordingly, we apply a de novo standard
Regions Bank v. Reed, [Ms. 1081619, Sept. 30,
2010] __ So. 3d __, __ (Ala. 2010)(explaining that when a
petition presents only questions of law, this Court applies "a
de novo standard"); see also Gianakos, supra.
The psychotherapist-patient privilege, as adopted by the
confidential relations and communications between licensed
psychological technicians and their clients are placed upon
the same basis as those provided by law between attorney and
client, and nothing in this chapter shall be construed to
require any such privileged communication to be disclosed."
explication of this privilege, providing, in pertinent part:
"(b) General Rule of Privilege. A patient has
a privilege to refuse to disclose and to prevent any
communications, made for the purposes of diagnosis
or treatment of the patient's mental or emotional
condition, including alcohol or drug addiction,
among the patient, the patient's psychotherapist,
and persons who are participating in the diagnosis
psychotherapist, including members of the patient's
"(c) Who May Claim the Privilege. The privilege
may be claimed by the patient, the patient's
representative of a deceased patient.
who was the psychotherapist at the time of the
communication is presumed to have authority to claim
the privilege but only on behalf of the patient.
"(1) Proceedings for Hospitalization. There is
no privilege under this rule for communications
relevant to an issue in proceedings to hospitalize
psychotherapist has determined, in the course of
diagnosis or treatment, that the patient is in need
"(2) Examination by Order of Court.
court orders an examination of the mental or
emotional condition of a patient, whether a party or
a witness, communications made in the course thereof
are not privileged under this rule with respect to
the particular purpose for which the examination is
ordered unless the court orders otherwise.
"(3) Accused in Criminal Case.
There is no
privilege under this rule as to an accused in a
criminal case who raises the defense of insanity.
There is no
privilege under this rule as to an issue of breach
of duty by the psychotherapist to the patient or by
the patient to the psychotherapist.
"(5) Child Custody Cases. There is no privilege
under this rule for relevant communications offered
in a child custody case in which the mental state of
a party is clearly an issue and a proper resolution
of the custody question requires disclosure."
As noted, Yaw argued to the trial court that there should
be a "public policy" exception to the psychotherapist-patient
privilege in cases where such an exception is "essential to
public interest in safety.
Northwest and Newman reject this
position and argue that "public policy" actually supports the
application of the privilege in a case such as this.
"The strength of the public policy on which the statutory
recognized by this Court.
It follows that the privilege is
United Serv. Stations, Inc., 628 So. 2d 501, 504 (Ala. 1993).
The Court has explained the public policy that supports the
privilege as follows:
"Statutes such as § 34-26-2 are intended to
inspire confidence in the patient and encourage him
in making a full disclosure to the physician as to
his symptoms and condition, by preventing the
physician from making public information that would
result in humiliation, embarrassment, or disgrace to
the patient, and are thus designed to promote the
efficacy of the physician's advice or treatment.
The exclusion of the evidence rests in the public
policy and is for the general interest of the
See 81 Am. Jur. 2d Witnesses § 231 at
262 (1976); Annot., 44 A.L.R.3d 24 Privilege, in
Judicial or Quasi-judicial Proceedings, Arising from
Relationship Between Psychiatrist or Psychologist
and Patient (1972).
"'[A] psychiatrist must have his patient's
confidence or he cannot help him. "The
psychiatric patient confides more utterly
than anyone else in the world. He exposes
to the therapist not only what his words
directly express; he lays bare his entire
self, his dreams, his fantasies, his sins,
and his shame. Most patients who undergo
psychotherapy know that this is what will
be expected of them, and that they cannot
get help except on that condition. ... It
would be too much to expect them to do so
if they knew that all they say -- and all
that the psychiatrist learns from what they
say -- may be revealed to the whole world
from a witness stand."'
"Taylor v. United States, 222 F.2d 398, 401 (D.C.
Psychiatry and The Law (1952), p. 272."
Ex parte Rudder, 507 So. 2d 411, 413 (Ala. 1987).
As important as maintaining the psychotherapist-patient
recognized that "this psychiatrist-patient privilege may not
in all cases be an impenetrable shield."
Rudder, 507 So. 2d
Yaw cites one case from another jurisdiction that
appears to allow an exception to the privilege for a situation
involving "[a] mental patient's threat of serious harm to an
identified victim." 6
At least one other jurisdiction allows
an exception to the privilege in a situation "where the public
interest in safety from violent assault is threatened." 7
In Peck v. Counseling Service of Addison County, Inc.,
146 Vt. 61, 67, 499 A.2d 422, 426 (1985), the Vermont Supreme
"A mental patient's threat of serious harm to an
identified victim is an appropriate circumstance
under which the physician-patient privilege may be
This exception to the physician-patient
privilege is similar to that recognized in the
attorney-client relationship when a client informs
an attorney of his or her intent to commit a crime."
In Schuster v. Altenberg, 144 Wis. 2d 223, 249, 424
N.W.2d 159, 170 (1988), the Wisconsin Supreme Court concluded
that "[t]he concern regarding the preservation of patient
trust in the confidentiality of communications is legitimate,
Alabama case has been brought to our attention creating such
an exception, however, and we are aware of none.
In Ex parte Pepper, 794 So. 2d 340, 343 (Ala. 2001), this
Court declined an invitation to create "an exception to the
privilege applicable when a party seeks information relevant
794 So. 2d at 343.
The Court explained:
"'There is no implication in the
language of § 34-26-2 that the legislature
intended an exception to the privilege
where the issue of a party's mental
condition is raised in a civil proceeding.
construction, that where the meaning of the
plain language of the statute is clear, it
must be construed according to the plain
language, see, e.g., King v. National Spa
& Pool Inst., 607 So. 2d 1241, 1246 (Ala.
1992), this Court will not create such an
Moreover, such an exception
would conflict with the public policy
privilege noted above.'
"[Ex parte United Serv. Stations, Inc.,] 628 So. 2d
[501,] 504 [(Ala. 1993)].
We do not believe that
[the defendant's] competing interest outweighs the
public policy on which the psychotherapist-patient
privilege is based, nor do we find any implication
that the Legislature intended an exception to the
psychotherapist-patient privilege to be applied
yet one which must yield in those limited circumstances where
the public interest in safety from violent assault is
where a party seeks information relevant to the
issue of the proximate cause of another party's
injuries. Thus, we are unwilling to adopt such an
Pepper, 794 So. 2d at 343-44.
Northwest and Newman argue that the Alabama Rules of
Evidence state five exceptions to the psychotherapist-patient
privilege, see Rule 503(d), and that the situation presented
here falls into none of those five exceptions.
In the face of
those five exceptions, we decline to use our adjudicatory
authority over an individual case such as this to create an
expression, and few cases can arise in which its application
may not be disputed....'"'
to the legislature."
Such creations are best left
Hinrichs v. Tranquilaire Hosp., 352 So.
2d 1130, 1131 (Ala. 1977) (quoting Petermann v. International
Brotherhood of Teamsters, 174 Cal. App. 2d 184, 188, 344 P.2d
25, 27 (1959)).
We agree that such creations are best left to
authority of this Court.
See 25 Charles Alan Wright & Kenneth
W. Graham, Jr., Federal Practice & Procedure: Evidence § 5542
statutory patient's privilege, courts have no power to create
exceptions by judicial decision.").
Yaw also argued in the trial court that Johnson's medical
records should be discoverable because, she argued, they are
"the only source of relevant evidence" for her legal action
and their release is "essential to a just determination of the
In their petition, Northwest and Newman argue
that the privilege, as articulated by the legislature and by
confidential relations and communications between licensed
psychological technicians and their clients are placed upon
the same basis as those provided by law between attorney and
Ala. Code 1975, § 34-26-2.
We have been directed to
no Alabama statute, rule, or precedent 8 that
In Ex parte Western Mental Health Center, 884 So. 2d 835,
843 (Ala. 2003) (plurality opinion), two members of the Court
concluded that the psychotherapist-patient privilege could
potentially run afoul of federal and state constitutional due16
impels us to recognize in this case, an exception to the
privilege that would narrow those parameters by making the
privileged information is "necessary" to proving a cause of
Such an exception might be compared to the exception
Obviously, however, there are differences in the policies that
underlie the psychotherapist-patient privilege and the workproduct
arguably has more serious ramifications than overriding the
Moreover, we note with approval the special writing
of Justice Lyons, joined by Justices Houston, See, and Brown,
"While work-product materials are subject to a
qualified privilege, so that discovery is permitted
upon a showing of substantial need and undue
hardship, the attorney-client privilege is almost
absolute, subject to certain narrow exceptions that
process protections, but the respondents in that case had
failed to submit any evidence that would support the
conclusion that the denial of access to the privileged
materials prevented them from defending themselves. Federal
and state constitutional due-process arguments have not been
presented in the case now before us.
substantial need. Ex parte Great American Surplus
Lines Ins. Co., 540 So. 2d 1357 (Ala. 1989). I am
therefore unwilling to adopt a qualification of the
p s y c h o t h e r a p i s t -patient
§ 34-26-2, Ala. Code 1975, requires that that
privilege be placed on the same basis as the
(Lyons, J., concurring in the
result); see also Wright &
Graham, § 5542 ("If there is not an applicable exception to a
statutory patient's privilege, courts have no power to create
exceptions by judicial decision."). 9
Having concluded that none of the recognized exceptions
to the privilege apply here and that this Court should not in
this proceeding create a new exception to the privilege, the
Yaw notes that one of the recognized exceptions to
the psychotherapist-patient privilege is that the privilege is
waived by implication when a criminal defendant raises the
("There is no privilege under this rule as to an accused in a
prosecutions, "[a] witness's claim of a statutory privilege
may, under certain circumstances, violate a defendant's Sixth
Amendment rights of confrontation and cross-examination."
Schaefer v. State, 676 So. 2d 947, 948 (Ala. Crim. App. 1995).
Similar concerns are not presented here.
criminal case who raises the defense of insanity."
psychotherapist-patient privilege by raising the issue of his
sanity in the criminal case pending against Johnson for his
alleged assault of Broadhead.
Assuming without deciding that
a defendant's raising the defense of insanity in a criminal
proceeding effects a waiver of the psychotherapist-patient
privilege in a related, but collateral, civil proceeding,
Yaw's argument must be rejected because it does not appear
that Johnson did in fact assert an insanity defense in any
criminal proceedings arising out of the alleged assault of
Yaw relates in her brief to this Court that the trial
court stated at a hearing in this case that, in the related
criminal case against Johnson, it had ruled that Johnson was
sanity at the time of the offense and his competency to stand
trial are two distinct issues."
577, 584 (Ala. Crim. App. 1999).
Frazier v. State, 758 So. 2d
We are presented here with
no argument that an inquiry into the competency of a defendant
to stand trial in a criminal proceeding has any bearing on the
availability of the psychotherapist-patient privilege in a
collateral civil proceeding.
See generally Rule 11.2(b)(1),
competency to stand trial are inadmissible in a trial for the
offense charged). 10
Yaw also attaches to her brief in this Court a copy of
an order from the Montgomery Circuit Court in a case in which
Johnson has been charged with possession of marijuana. The
order requires Johnson to undergo an inpatient evaluation of
his mental health; it states, in pertinent part, that
"[t]he Court received information that [Johnson] may
lack sufficient present ability to assist in [his]
defense by consulting with counsel with a reasonable
degree of rational understanding of the facts and
the legal proceedings; and the Court finding that
reasonable grounds exist to question [Johnson's]
competency; and the court having been informed by
officials at Taylor Hardin Secure [Mental Facility]
that [Johnson] has been committed to the custody of
the Alabama Department of Mental Health by Judge
evaluation and/or treatment ...."
Although the order also directs the
examiner to address Johnson's mental condition at the time of
the alleged offense, i.e., the marijuana possession, there is
no indication in the order (1) that the offense at issue had
any relation to Johnson's alleged assault of Broadhead or (2)
that Johnson asserted an insanity defense in relation to any
such assault charge.
psychotherapist-patient privilege, "only the client may waive
Watson v. State, 504 So. 2d 339, 344 (Ala.
Crim. App. 1986).
Moreover, the patient must "objectively
manifest a clear intent not to rely upon the privilege" in
order to waive it.
So. 2d at 505.
Ex parte United Serv. Stations, Inc., 628
The materials before us do not support the
conclusion that Johnson waived the privilege.
trial court's order requiring Northwest and Newman to produce
Johnson's medical records cannot be justified on this basis. 11
In her brief to this Court, Yaw also argues that this
Court should deny Northwest and Newman's petition and
effectively uphold the trial court's order because, she says,
(1) Northwest and Newman failed to establish that "every item
contained in the medical records [was] the result of
psychotherapist," and (2) Northwest and Newman did not assert
the privilege "on behalf of" Johnson.
See Ala. R. Evid.
503(c)(describing those persons who may assert the privilege).
It does not appear, however, that Yaw argued to the trial
court either of these particular grounds. Had Northwest and
Newman been made aware of these contentions, they might have
presented evidence and legal arguments to address them.
Instead, it appears that the matter was treated as if the
records contained confidential communications and that the
privilege had been properly invoked but for the public-policy
exceptions to the privilege urged by Yaw.
decline to consider these issues in this proceeding.
Based on the arguments and materials that were presented
conclude that the trial court's order requiring the production
therefore grant Northwest and Newman's petition and order the
trial court to vacate that order.
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and Woodall, Bolin, and Main, JJ., concur.
Murdock, J., concurs specially.
MURDOCK, Justice (concurring specially).
I write separately to comment on the presumption that,
when a psychotherapist invokes the privilege, he or she has
psychotherapist at the time of the communication is presumed
to have authority to claim the privilege but only on behalf of
Ala. R. Evid. 503(c).
In an argument made by
Sheila Yaw in her brief to this Court, but not made to the
trial court, see ___ So. 3d at ___ n. 11, Yaw argues that
invocation of the privilege in this case was not done on
behalf of Dimoris Johnson, the patient.
This argument is
premised on the notion that the last clause of Rule 503(c),
"but only on behalf of the patient," contemplates a different
issue than whether the psychotherapist has "authority" to
invoke the privilege.
In particular, Yaw argues that in order
for Northwest and Newman to invoke the privilege "on behalf of
Johnson" the disclosure prevented by the invocation of the
privilege must be "prejudicial" in some way (exactly how is
members of the community in their ability to make confidential
physicians' advice or treatment, and the general interest of
the community as a whole in the efficacy of that treatment.
As stated in the opinion, however, whether the "on behalf of
the patient" requirement (which presumably could be refuted by
the production of a waiver from the patient) does in fact
contemplate something more than the general presumption of
authority (see generally 25 Charles Alan Wright & Kenneth W.
Graham, Jr., Federal Practice & Procedure: Evidence § 5541
(1989) (questioning whether the "on behalf of the patient"
privilege or is deceased); see also id. at § 5553 ("[I]t is
generally held that the court can assert the privilege on
behalf of an absent patient, either on its own motion or that
of a party.")) is not an issue properly before us.