Opinion
No. D03 CP06-002317-A
September 14, 2007
MEMORANDUM OF DECISION RE PETITIONER'S MOTION FOR DISCLOSURE OF CERTAIN TREATMENT RECORDS
In anticipation of the scheduled trial on the Department of Children and Families' (DCF) petition for the termination of respondent father's parental rights, DCF asks this court to disclose records received from the Connecticut Counseling Center (CCC) as well as the Midwestern Connecticut Commission on Alcoholism (MCCA) subpoenaed under seal to court. The records sought pertain to respondent father Craig S. Specifically, the subpoenas sought: "intake and discharge records; attendance records; drug and alcohol test results; records indicating compliance or noncompliance with and progress in treatment." At oral argument on the motion, DCF confirmed that it was not seeking disclosure of any communications or records of communications between respondent father and these treatment providers.
DCF seeks disclosure of these materials under both statutory and case law authority, specifically including: CGS § 17a-688; 42 U.S.C. § 290dd-2; 42 C.F.R. § 2.64, and In re Marvin M., 48 Conn.App. 563 (1998). Relying principally on Falco v. Institute of Living, 254 Conn. 321 (2000), In re Reginald H., 06-CBAR-2558 (Bear, J.; Child Protection Section at Middletown, August 25, 2006) and In re Na-shawn J., 06-CBAR-1889 (Winslow, J.; June 30, 2006) [41 Conn. L. Rptr. 567], respondent father objects to the disclosure. He argues in the first instance that the Connecticut statutes create a broader privilege than that afforded under the federal statutes and that absent a specific exception to the Connecticut privilege, no disclosure can be made absent consent. Alternatively, he argues that DCF cannot meet the threshold for disclosure under the federal statutes, if the court should apply that statute.
It should be noted at the outset that the documents sought herein are limited to substance and alcohol abuse treatment records. Many of the recent decisions regarding so-called "Romance motions" have included a broad spectrum of records from mental health counseling, psychiatric, psychological or other medically related treatment professionals. This case does not require an analysis of the application and/or scope of the various statutory privileges that exist under Connecticut's statutory scheme or the exceptions thereto. The court finds this worth noting because, in this court's view, there has been and may continue to be a blurring of the various privileges afforded under Connecticut law, and while they each have similar components, they have many differences as well and so require distinct analyses.
Prior to oral argument, the court had asked counsel for respondent father to review the records in question so that counsel could identify which, if any, privileges were to be asserted. Having done so, at oral argument, respondent father argued that C.G.S. § 52-146o precludes disclosure of these records. There is little question that more than one privilege statute might be applicable to a particular disclosure request. In such an event, the applicability of each statute and any exceptions to its requirements must be addressed. See, Skakel v. Benedict, 54 Conn.App. 663 (1999). CGS § 52-142o provides in pertinent part:
Respondent father also argues in his brief (perhaps because the records had not yet been reviewed) that DCF has failed to show the applicability of one of the exceptions to the consent requirement set forth in CGS § 52-146(f). This is exemplary of how the various and distinct privileges have been blurred into a single notion. Section 52-146(f) identifies the limited exceptions to the very broad psychiatrist-patient privilege. The statute and its requirements are irrelevant to the pending motion as no such records are sought.
Disclosure of patient communication or information by physician, surgeon or health care provider prohibited. (a) Except as provided in sections 52-146c to 52-146j, inclusive, and subsection (b) of this section, in any civil action or any proceeding preliminary thereto, or in any probate, legislative or administrative proceeding, a physician or surgeon, as defined in subsection (b) of section 20-7b, shall not disclose (1) communication made to him by, or any information obtained by him from a patient with respect to any actual or supposed physical or mental disease or disorder or (2) any information obtained by personal examination of a patient, unless the patient or his authorized representative explicitly consents to such disclosure.
Subsection (b) provides that consent is not required where disclosure is authorized "(1) pursuant to any statute or regulations of any state agency or the rules of court."
The first question that must be answered is whether CGS 52-146o is applicable in these proceedings. "The privilege has no application to criminal proceedings or any civil proceeding that is not a "civil action" or a probate or administrative proceeding." Tait, Handbook of Connecticut Evidence, § 5.44.2. See also, State v. Anderson, 74 Conn.App. 633, 653-54 (2003) (CGS § 52-146o does not apply in criminal proceedings). The question is whether juvenile child protection proceedings are "civil actions." This is a question of statutory interpretation.
"According to our long-standing principles of statutory [interpretation], our fundamental objective is to ascertain and give effect to the intent of the legislature . . . In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) State v. Hackett, supra, 132. "As with any issue of statutory interpretation, our initial guide is the language of the operative statutory provisions." (Internal quotation marks omitted.) Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 642, 729 A.2d 212 (1999). "A cardinal rule of statutory construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance." (Internal quotation marks omitted.) Schiappa v. Ferrero, 61 Conn.App. 876, 882, 767 A.2d 785 (2001). "It is our duty to interpret statutes as they are written . . . Courts cannot, by construction, read into statutes provisions which are not clearly stated . . . The legislature is quite aware of how to use language when it wants to express its intent to qualify or limit the operation of a statute." (Citations omitted; internal quotation marks omitted.) State v. Ingram, 43 Conn.App. 801, 825, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997).
CT Page 17610
"A common law privilege for communications made by a patient to a physician has never been recognized in this state." Edelstein v. Dept. of Public Health Addiction Services, 240 Conn. 658, 662, 692 A.2d 803 (1997). "In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. The court is to go no faster and no further than the legislature has gone . . . A legislative intention not expressed in some appropriate manner has no legal existence." (Internal quotation marks omitted.) Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975).
State v. Anderson, 74 Conn.App. 633, 6 (2003) (discussing CGS § 52-146o) (emphasis added). With these rules as the court's parameters, the question is whether child protection proceedings are "civil actions" to which the privilege afforded under section 142o applies. For reasons set forth below, the court determines that they are not.
The term "civil action" is not defined in our statutes. However, our practice book has long recognized that child protection matters are essentially civil in nature. Practice Book § 32a-2 ("All hearings are essentially civil proceedings"). Similarly, CGS § 46b-121, which defines "Juvenile matters" provides that neglect proceedings or proceedings related to the termination of parental rights fall within the "civil session" of the juvenile court. Intuition and perhaps common sense would then extend the privilege provided for under section 142o to this matter.
However, an examination of the legislative history of this statute and the legislative scheme regarding the application of various other privileges mandates, in this court's view, a contrary conclusion.
The court looks first to the legislative history. Prior to the enactment of this statute, Connecticut did not recognize a doctor-patient privilege in its courts. Public Act 90-177, which ultimately became section 52-146o was presented to the Judiciary Committee by the Connecticut Trial Lawyers Association in an effort to eliminate the practice by insurance adjusters or defense counsel of contacting plaintiff's treating physicians ex parte in personal injury actions. (Judiciary Committee, March 17, 1990, Pt. 4, pp 1161-62); Tait, CT Page 17611 Handbook of Connecticut Evidence § 5.44.1 (Third. Ed. 2001). Indeed, speaking against the bill before the Committee was the Insurance Association of Connecticut, representing the views of insurance carriers and their counsel in personal injury actions. (Judiciary Committee, March 17, 1990, Pt. 4, pp. 1187-88.) Most importantly, the entire discussion of the privilege and the protections being afforded took place in the context of personal injury and similar types of civil actions. There is no discussion about other types of proceedings in which the privilege might or should be applied. Similarly, Senator Blumenthal when remarking on the purpose for which the bill is proposed states: "[I]n rare circumstances, where the health care provider is approached by an insurance adjuster or a lawyer, on occasion, the records are provided without the consent of the patients." (Senate Session, Vol. 33, Pt. 8, pp. 2620, May 5, 1990.) The discussion in the House of Representatives is similarly focused on personal injury law suits and the practice of ex parte communications by adjusters or other agents of the insurance company with doctors. (House of Representatives Session, Vol. 33, Pt. 11, pp. 4860-61.)
In sum, the legislative history evinces no indication that the statute was intended to be applicable in child protection cases and indeed, the use of the phrase "civil action" appears to have been used in an effort to delineate what are essentially personal injury types of actions.
The court also notes that CGS § 51-345 is one of the few statutes that also employ the phrase "civil action." It governs " Venue in civil actions" and provides an expansive list of procedures by which to determine the appropriate venue for a host of types of causes of action, each of which would be heard in the "civil division" of the Superior Court. Notably, it does not include juvenile proceedings, venue for which is specifically addressed at CGS § 46b-142.
Further, under the doctrine of pari materia, "statutes relating to the same subject matter may be looked to for guidance in reaching an understanding of the meaning of a statutory term." Skakel v. Benedict, 54 Conn.App. at 676, quoting, Doe v. Institute of Living, Inc., 175 Conn. 49, 58 (1978). The court looks first to the language of CGS § 52-146b which governs the privilege of communications with clergy. That privilege applies in any " civil or criminal case or proceedings preliminary thereto, or in any legislative or administrative proceeding." Use of this language would suggest that a "civil case" is different and distinct from a "civil action." Next is the language of CGS § 52-146c, which governs the privilege of communications between a psychologist and a patient. That privilege applies " in civil and criminal actions, in juvenile, probate, commitment and arbitration proceedings, in proceedings preliminary to such actions or proceedings, and in legislative and administrative proceedings." (Emphasis added.) The manifest import of this language is that a "civil action" is clearly distinct from a "juvenile proceeding." Indeed, the use of the phrase "civil action" rather than the more often used "civil case" in conjunction with "juvenile proceedings" compels this conclusion. The expansive list of forums in which this particular privilege applies evinces an unambiguous intent to provide a very broad application of the psychologist-patient privilege. A contrary intent is inferred from the more limited language of section 142o.
Next to be examined is CGS § 52-146e and f, which governs the psychiatrist-patient privilege. Unlike many other statutory privileges, which are specifically limited to certain types of proceedings, the psychiatric privilege contains no such limitation. Indeed, it is only within CGS § 52-146f, which provides the exceptions to the consent requirement, where a particular forum is identified. This is substantially different from identifying, in the first instance, in which forum the privilege even exists. Notably, one exception, located at 146(f)(5) permits (under certain circumstances) disclosure in "civil proceedings." It was this statutory exception which was applied in In re Romance M., 30 Conn.App. 839 (1993). From this, the court concludes that child protection matters are "civil proceedings." This conclusion is consistent with both the Practice Book and CGS § 46b-121 both of which view child protection matters as "civil" in nature. See supra.
The court is aware that the Appellate Court's application of section 142f(5) in In re Romance M., 30 Conn.App. 839 (1993), has been called into question by other Superior Court decisions in light of the Supreme Court's pronouncement in Falco v. Institute of Living, 254 Conn. 321 (2000). The issue for which Romance is cited herein is not the subject of that controversy.
The legislature has provided such a broad application of the privilege in other relationships as well. There are no forum restrictions on the application of the social worker privilege located at CGS 52-146q, or the marital therapist privilege, located at CGS 52-146p.
The next privilege identified by statute, CGS § 52-146k, is the privilege between a sexual assault counselor or battered women's counselor and a victim. Under CGS § 52-146k, the prohibition against disclosure applies in "any civil or criminal case or proceeding or in any legislative or administrative proceeding." Again, no mention of "civil actions," only civil cases or proceedings.
The specific inclusion of "juvenile proceedings" in the only other statute that also references "civil actions" in the context of privileges is compelling. As is the recurring use of "civil case" or "civil proceeding" instead of "civil actions" in all other privilege statutes. Indeed, it appears the legislature intended to restrict the application of the privilege identified in CGS § 52-142o in its use of the phrase "civil action." This reading is consistent with the legislative history cited above.
In sum, going "no faster and no further" than the legislature has clearly mandated this court concludes that the health care provider-patient privilege created under CGS § 52-146o does not apply to child protection proceedings. See State v. Anderson, supra.
Even were this court to apply the statute to these proceedings, there are two separate analyses, either of which, would result in disclosure of the records sought. First, looking to the scope of the privilege, the privilege extends to "communications" by the patient, "information obtained . . . from a patient" and "information obtained by personal examination of a patient." While some of the records responsive to the subpoena may include these items, the type of records sought do not generally contain this type of material, i.e. attendance records, drug screens, intake or discharge records etc. Indeed, with DCF's agreement that it was not seeking communications or records of communications, the privilege would not cover the records sought.
A third analysis that might be had is the question of whether the providers at CCC and MCCA are covered. The caption of the statute clearly includes "other health care providers" which they surely would be. However, the substantive directive applies only to doctors and surgeons "as defined at 20-7b." However, 20-7b does not define doctors and surgeons but defines "providers." The amendment by which this was accomplished was intended to narrow the scope of the privilege to doctors and surgeons, removing the reference to "other health care providers." Tait, Handbook on Connecticut Evidence, § 5.44.4 (Third Ed. 2001). However, the cross-reference to section 20-7b appears to defeat that purpose. In any event, it is so utterly unclear, this court will presume the applicability of the statute to MCCA and CCC.
Second, even if the privilege applied, and the records sought fell within the scope of the privilege, CGS § 52-146o(b) provides for disclosure of the otherwise protected material "pursuant to any statute . . . or the rules of court." See, e.g. Alexandru v. West Hartford Obstetrics and Gynecology, 78 Conn.App. 521 (2003) (Disclosure pursuant to the Federal Rules of Civil Procedure is permitted and appropriate under § 146o(b)(1)). Here, Practice Book § 32a-8(a) is a "rule of court" by which the records may be admitted into evidence. Further, there are both state and federal statutes (which are also referenced in P.B. § 32a-8(a)) which provide for the disclosure of these records under limited circumstances. C.G.S § 17a-688 creates a statutory privilege for certain substance abuse treatment records which is essentially co-extensive with the federal protection for same. In re Marvin M., 48 Conn.App. at 568-69. Federal law includes provisions for the disclosure of the records under certain circumstances. This of course, raises the question of whether, as averred, DCF can satisfy the requirements set forth under federal law for disclosure of the items sought.
Title 42 USC § 290dd-2 provides protection from disclosure of "[r]ecords of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall . . . be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b)."
Respondent father argued that DCF had failed to establish that MCCA and/or CCC were "conducted, regulated, or directly or indirectly assisted by any department or agency of the United States." Even if this were required, which this court finds it is not, the failure to include such "proof" would eviscerate the privilege, not the availability of the exceptions. This is a statutorily created privilege that attaches to certain treatment providers. Absent this "federal nexus" being satisfied, the privilege itself does not exist under federal law. The Connecticut statute that adopts the federal protections is worded in a fashion that avoids the need for a finding of the "federal nexus." CGS § 17a-688 provides: "No person, hospital or treatment facility may disclose or permit the disclosure of, . . . the identity, diagnosis, prognosis or treatment of any such patient that would constitute a violation of federal statutes concerning confidentiality of alcohol or drug patient records and any regulations pursuant thereto." The clear legislative intent is to provide the same substantive protections but subject to the federal regulations governing disclosure. See, In re Marvin M., 48 Conn.App. at 569.
While nondisclosure is the general rule, exceptions do exist. Subsection (b)(2)(C) permits disclosure of such records without the consent of the patient "[i]f authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefore, including the need to avert a substantial risk of death or serious bodily harm. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure." 42 U.S.C. §§ 290dd- 2(b)(2)(C). The statute grants the secretary of health and human services wide latitude to make regulations that "carry out the purposes of this section . . . Such regulations may contain such definitions, and may provide for such safeguards and procedures, including procedures and criteria for the issuance and scope of orders under subsection (b)(2)(C)." 42 U.S.C. §§ 290dd- 2(g).
In re Marvin M., supra. at 569-70. "Ordinary, run-of-the-mill objective data (i.e. not confidential communications) is disclosable if the Government meets the `good cause' test established in §§ 290dd-2(b)(2)(C)." Id. The regulation that defines the "good cause" standard under subsection (b)(2)(C) is 42 C.F.R. § 2.64. "To determine whether "good cause" exists, the court must find that: `(1) Other ways of obtaining the information are not available or would not be effective; and (2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.' 42 C.F.R. § 2.64(d)." Id. at 573.
42 CFR § 2.63 provides the circumstances under which confidential "communications" can be disclosed. They are very few and none would be applicable here. Additionally, as stated, DCF is not seeking communications.
The Marvin case considered the precise documents sought here to be "ordinary, run-of-the-mill" objective data. Marvin is controlling and so this court will apply the "good cause" test provided for under the federal regulations. On this issue, no case law controls, as the determination is clearly driven by the particular facts and circumstances of each case in which it must be made.
The court agrees with DCF that the type of data being sought here is by its nature not available from other sources. The attendance records, the results of drug screens and the compliance with the treatment regimen are uniquely within the knowledge of the treatment providers as recorded in their files. While there might be some person with some peripheral knowledge as to some of the information sought, i.e. a DCF employee with whom father might have discussed these matters at the time, the court is satisfied that the specific information sought is not realistically available through alternative sources.
Next to be determined is the balancing test between the public interest in the disclosure on the one hand, and the potential injury to the patient and/or his relationship with the treatment provider on the other. DCF relies upon the child's interest in a full and fair proceeding on the issues presented as well as its own substantial interest in protecting the child and providing the child with not only permanency but also a nurturing and safe environment. This proceeding, DCF avers, is the mechanism for achieving those goals. Finally, DCF avers that the trial court will be significantly hampered in resolving the case without the information.
The determination of whether to terminate parental rights "is a most serious and sensitive judicial action." In re Jonathan M., 255 Conn. 208, 231 (2001); In re Bruce R., 234 Conn. 194, 200 (1995). Indeed, the court's task has been identified as not only vital, but Herculean when the right of a child to be protected and placed in a nurturing environment conflicts with a parent's right to raise a child without undue government interference. In re Shaiesha O., 93 Conn.App. 42, 43 (2005). As such, in child protection matters and particularly termination petitions, there is an enormous public interest in providing the court with as much information as may be available on the issues presented. However overwhelming this public interest may be, it is not, in and of itself, an adequate basis upon which to vitiate the statutory protections. Indeed, if it were, there would effectively be no such protections for the type of records sought here in child protection matters. The countervailing interest of the patient and the relationship between the patient and the treatment provider must be considered.
Here, respondent father is currently incarcerated outside the State of Connecticut and has been for many months. As such, he has no ongoing patient-provider relationship that might be jeopardized by the disclosure nor any current in place treatment which might suffer. He argues however that even an "after the fact" order of disclosure could have a chilling effect on the willingness of people to seek substance abuse treatment. While this is a legitimate concern, this alone does not defeat or outweigh the substantial public interest in the disclosure of these records to the trial court in this matter.
The petition to terminate respondent father's parental rights alleges, among other things, a substance abuse history by father. Whether the father sought and/or attended treatment; completed treatment; abstained from drug use during the course of treatment and was compliant with his treatment regimen are germane to the issue of father's past and perhaps current substance abuse issues, which in turn may directly impact upon the very serious decision that the trial court must make.
The motion for disclosure of records from CCC and MCCA is granted as follows:
1. Although no communications were sought with the subpoenas, the court and the parties recognized that the production of records in response to the subpoena may well include records of communications between father and the service providers. The court will review the materials in camera, redacting any records of communications between father and the treatment providers. Any redacted portions will be returned to the treatment provider and will remain under seal. Those portions deemed disclosable will be clearly marked and made available to all counsel.
This court is not the trial court.
The court, in reviewing the materials, noted that some of the records are signed by a "licensed clinical social worker," which, though not asserted by respondent father, might implicate the statutory privilege that derives from the relationship between a patient and a social worker, CGS § 52-146q. However, § 146q extends the privilege to "all communications and records," a phrase that is defined as " all oral and written communications and records thereof relating to the evaluation or treatment of a person between such person and a social worker [and family members of the patient or agents of the social worker]." Under the directive of State v. Anderson, supra, the scope of the privilege should also be strictly construed. In view of the fact that DCF does not seek, and the court intends to redact, any records of communications (oral or written) between respondent father and the personnel at MCCA and CCC, this privilege is not implicated by the records sought in this particular case.
2. Testimony regarding those portions of the records that are disclosed is permitted.
3. No further disclosure of the records or the contents thereof is permitted except upon court order. Parties or their counsel receiving records will use the records solely for the purposes of these proceedings.
4. Disclosed records are to be returned to the provider or destroyed at the conclusion of these proceedings.
5. Nothing herein is intended to limit the exercise of the trial court's discretion in its ruling upon the admissibility of these records as those issues might be raised at trial.