In re J.M.G.

• Decision Date: 22 April 2020
• Docket Number: No. 18 MAP 2019,18 MAP 2019
• Citation: 229 A.3d 571
• Parties: In the INTEREST OF: J.M.G., a Minor Appeal of: J.M.G.
• Court: Pennsylvania Supreme Court

229 A.3d 571

In the INTEREST OF: J.M.G., a Minor

Appeal of: J.M.G.

No. 18 MAP 2019

Supreme Court of Pennsylvania.

Argued: September 12, 2019

Decided: April 22, 2020

OPINION

JUSTICE MUNDY

We granted allowance of appeal in this case to decide whether the harmless error doctrine is applicable to determinations made by the trial court under Act 21¹ when the materials provided to the Sexual Offender Assessment Board(SOAB), and considered by the Commonwealth's expert in preparing his report and rendering his opinion, erroneously contained privileged communications under 42 Pa.C.S. § 5944 of the Judicial Code, establishing psychologist-patient privilege.For the reasons that follow, we conclude that the harmless error doctrine does not apply.

A brief summary of the factual and procedural circumstances follows.Appellant, J.M.G., was born in August 1996.From an early age, J.M.G. experienced chronic mental health issues and a series of resultant hospitalizations.Following an incident in 2013, during which he attempted to choke his adoptive mother(Mother), J.M.G. consented to a voluntary admission into Philhaven, a behavioral health facility treating children and adolescents.Thereafter, J.M.G. agreed to a voluntary admission into Bradley Center, a residential treatment facility.While at Bradley Center, J.M.G. made revelations to Mother that he had been sexually inappropriate with his adoptive sister.Mother referred the matter to Childline.A subsequent investigation resulted in J.M.G. being adjudicated delinquent on July 6, 2015, for one count of misdemeanor indecent assault.²The Superior Court affirmed the disposition order on July 12, 2016.³J.M.G. has been continually placed in secure, residential treatment facilities since his adjudication.

On May 19, 2016, the trial court notified J.M.G. that he was subject to evaluation by the SOAB in accordance with Section 6358 of the Juvenile Act.⁴The court's order directed the Chief Juvenile Probation officer or designee to "redact the substance of any confidential communication from the child to a psychiatrist or psychologist in the course of treatment" in accordance with 42 Pa.C.S. § 5944.The Juvenile Probation Department assembled materials and records it planned to provide to the SOAB.A copy of these documents were supplied in advance to J.M.G.'s attorney.The trial court granted J.M.G.'s request for additional time to review the submission.On July 13, 2016, J.M.G. filed a motion for additional redactions to the records.The trial court denied the motion and the documents were supplied to the SOAB without further redaction.Specifically, the materials included an April 7, 2015 psychiatric evaluation report made by Dr. Rocco Manfredi for the purpose of J.M.G.'s treatment and in which J.M.G. made incriminating statements.Dr. Manfredi's report also contained allusions to an earlier evaluation made for therapeutic purposes in which additional unfavorable statements by J.M.G. were referenced.⁵Based on the SOAB's assessment, the trial court conducted a dispositional hearing to ascertain if a prima facie case existed to initiate civil commitment proceedings.⁶On January 27, 2017, the trial court ruled that a prima facie case was established.The Cumberland County District Attorney⁷ filed a petition requesting J.M.G. be involuntarily committed under Act 21.A civil commitment hearing occurred on March 13, 2017.Witnesses testifying at the hearing included Dr. Stein, who earlier testified as the sole prima facie hearing witness.His evaluation included a summary of Dr. Manfredi's evaluation report.Additional witnesses included Jamie Henry, a therapist at Cove Prep; Dana Evangelista, clinical services manager at Cove Prep; and Dr. Foley, who opined on behalf of J.M.G. that placement was not justified.Thereafter, the trial court delivered its order civilly committing J.M.G., effective March 14, 2017.J.M.G. filed a timely notice of appeal.

On appeal, J.M.G. challenged, inter alia , the trial court's failure to properly redact the materials provided to the SOAB, resulting in the inclusion of information subject to J.M.G.'s psychotherapist-patient privilege.⁸The Superior Court majority, relying on that court's decision in In the Interest of T.B. , 75 A.3d 485(Pa. Super.2013), concluded the trial court erred in failing to redact Dr. Manfredi's report.In the Interest of: J.M.G. , 476 MDA 2017, 2018 WL 2274825(Pa. Super.May 18, 2018)(unpublished memorandum).In T.B. , the Superior Court held that Act 21 afforded no exception to the psychotherapist-patient privilege:

To be clear, it is not the purpose for which statements are sought that defines their privileged nature, but rather the purpose and circumstances under which the declarant madethem.Consequently, statements of a juvenile made to a mental health professional while in treatment remain privileged and may be released to the SOAB only with the juvenile's written consent.

T.B. , 75 A.3d at 496(emphasis original).Thus, the court remanded to the trial court with instructions to vacate the determination by the SOAB if it found the submitted materials included any "statements, evaluations, and summaries [ ] made for treatment purposes and the juvenile was not represented by counsel and informed of his right against self-incrimination[.]"Id. at 497.In the instant case, the Superior Court concluded that Dr. Manfredi's evaluation was made for therapeutic purposes, and that J.M.G. had not been represented by counsel during the evaluation nor advised of his rights.The Panel therefore held that the trial court erred in failing to redact the report from the materials submitted to the SOAB.

The Panel majority proceeded to subject this holding to a harmless error analysis.It noted that such an analysis was not engaged in by the T.B. Court.However, the Panel majority noted precedent suggested that evidence admitted in contravention of the psychotherapist-patient privilege may be subject to harmless error analysis.In the Interest of: J.M.G. , 476 MDA 2017, at *5(citingCommonwealth v. Flynn , 314 Pa.Super. 162, 460 A.2d 816, 823(1983) ).In Flynn , the Superior Court affirmed the trial court's rejection of Appellant's proffered insanity defense, notwithstanding admission of purported psychiatrist/patient privileged communications.Without determining the existence or scope of the privilege, the court noted the trial court stated it rejected the insanity defense without considering the challenged evidence, thus even if the testimony was improper, its admission in that case was harmless.Id.The majority here found that Dr. Stein's conclusions were not dependent on the improperly disclosed communications, but were supportable on other properly disclosed information submitted to the SOAB.Id. at *5-6.Further the majority noted that the opinions of Dr. Stein and J.M.G.'s expert did not disagree that J.M.G. has a mental abnormality that inclines him to sexual offending.The differences pertained to the appropriateness of inpatient treatment, which, according to the majority, was not relevant to the improperly admitted materials.Id.

The dissent fully agreed with the majority's determination and reasoning pertaining to the trial court's failure to redact Dr. Manfredi's evaluation report from the materials submitted to the SOAB. J.M.G. , 476 MDA 2017, at *6(Bowes, J., dissenting).However, the dissent disagreed with the majority's harmless error analysis, noting that the purpose underlying the psychotherapist-patient privilege is grounded in the therapeutic needs of patients suffering from mental health conditions.Id. at *7.Because candor is essential to effective treatment, assurance that therapeutic communications are safe from unauthorized disclosure is essential.Citing the T.B. Court's remand instructions to the trial court in that case, directing that the court"shall" vacate the determination of the SOAB if privileged materials had been erroneously submitted, the dissent opined that harmless error analysis is inappropriate in an Act 21 context.⁹Id. at *8.The dissent noted it would remand the matter with resubmitted materials properly redacted for assessment by individuals untainted by the improper disclosures.Id. at *9.

We granted J.M.G.'s petition for allowance of appeal to consider the following question:

Where the trial court violates the psychiatrist/patient privilege of a minor who had previously been placed in a juvenile delinquency facility and ordered to participate in ongoing mental health treatment, and where the trial court allowed, over objection, statements made by the juvenile to his psychiatrist and/or psychologist to be provided to the Sexual Offender Assessment Board(SOAB) pursuant to an Act 21 civil commitment procedure, is the violation harmless error?

In the Interest of: J.M.G. , 202 A.3d 42(Pa.2019).¹⁰

In his brief to this Court, citing extensively from the Superior Court dissent, J.M.G. argues both that harmless error analysis is not appropriate when psychotherapist-patient privilege is violated in Act 21 cases, and that even if such analysis is applied, the facts of this case do not support a conclusion that the error was harmless.Unlike the dissent, J.M.G. urges this court not to order a remand for further untainted proceedings, but to discharge him from any Act 21 commitment.¹¹

The Juvenile Law Center and the Pennsylvania Psychiatric Society filed a brief as Amici Curiae in support of J.M.G. Amici note a foundational tenet of our juvenile system is that minors who commit delinquent acts are amenable to treatment and rehabilitation.To this end, a myriad of services are employed to address the particular needs of each minor in the system.Among the arsenal of treatment options is, where appropriate, mental health treatment.For effective mental health treatment, a patient must be open to treatment, be able to provide candid disclosure to the treatment provider, and trust in the...