N.G. v. Superior Court

• Decision Date: 14 December 2012
• Docket Number: No. A–11049.,A–11049.
• Citation: 291 P.3d 328
• Parties: N.G., Petitioner, v. SUPERIOR COURT, Respondent.
• Court: Alaska Court of Appeals

291 P.3d 328

N.G., Petitioner,

v.SUPERIOR COURT, Respondent.

No. A–11049.

Court of Appeals of Alaska.

Dec. 14, 2012.

Shaun M. Sehl and Victor Kester, Office of Victims' Rights, Anchorage, for the Petitioner.

Hanley R. Smith, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Real Party in Interest, David Standifer.

Allen M. Bailey, Anchorage, for Amicus Curiae National Crime Victim Law Institute.

No separate appearance for the Superior Court.

Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

OPINION

MANNHEIMER, Judge.

David Standifer is facing charges of sexual assault, attempted sexual assault, and physical assault, based on allegations that he attacked a woman named N.G.

It appears that N.G. has a history of alcoholism, and there is at least some indication that she was previously diagnosed as suffering from a mental illness. Based on this, the superior court has issued an order that requires N.G. to identify everyone who has provided health care to her during the past twenty years, and that requires N.G. to sign a release so that the court can issue subpoenas to all of these health care providers, directing them to produce their records for the court's in camera inspection. The court intends to examine these records to determine whether they contain non-privileged information, and to determine whether this information is relevant to N.G.'s “ability to accurately perceive or truthfully report [the] events” at issue in this case. If so, the court intends to disclose this information to Standifer's defense team.

As we explain in this opinion, we conclude that the superior court's order is premised on a mistakenly narrow interpretation of the psychotherapist-patient privilege. We further conclude that the superior court's order is inconsistent with Alaska law governing the circumstances in which a court has the authority to order disclosure of a victim's or witness's privileged psychotherapy records. We therefore reverse the superior court's order.

Underlying facts

As explained at the beginning of this opinion, David Standifer stands charged with sexual assault, attempted sexual assault, and physical assault, based on allegations that he attacked N.G. According to the State's evidence, the attack took place in an isolated area near downtown Anchorage. N.G. managed to escape and run away to a more public place; a passerby observed N.G. after she collapsed on a roadway, bleeding and naked from the waist down. The police were summoned, and N.G. was taken to a medical facility for a sexual assault examination. A few days later, N.G. sought follow-up medical care. At that time, she was seen by two physicians.

The case notes prepared by the sexual assault examiner, as well as the case notes prepared later by the two physicians, refer to N.G.'s history of treatment for alcohol abuse and alcohol withdrawal. In addition, one of the physicians' case notes mentions that N.G. “[has] a history of bipolar disorder”.

Following Standifer's indictment, Standifer's attorney asked the superior court to order production of “any and all medical, alcohol treatment[, and] psychiatric records concerning N.G.”. The State opposed this motion, as did N.G. herself. (N.G. appeared independently for this purpose, represented by the Office of Victims' Rights.)

With regard to the request for disclosure of N.G.'s history of alcohol treatment, Standifer's attorney noted that the case notes (described above) referred to N.G.'s history of alcohol treatment. The defense attorney also asserted that he had examined other court records (public records) involving N.G., and that these records indicated that N.G. had a history of crimes that may have been alcohol-related. One of these records indicated that N.G. might have suffered an alcohol blackout.

With regard to the remainder of the defense request— i.e., the request for disclosure of all of N.G.'s other medical and psychiatric records—the defense attorney merely asserted that “there [was] a reference to a mental health diagnosis” in the physicians' case notes described above. The defense attorney was apparently referring to the one physician's mention of “bipolar disorder”.

Standifer's attorney acknowledged that the State presumably did not possess N.G.'s medical and psychiatric records. The defense attorney therefore asked the superior court to order N.G. to produce the names and addresses of every health care provider from whom she had ever sought medical treatment, psychiatric care or psychological counseling, or alcohol counseling or treatment.

In addition, the defense attorney asked the superior court to order N.G. to sign a blanket release, authorizing all of these health care providers to turn their files over to the superior court for the purpose of allowing the court to conduct an in camera inspection of these materials—with the understanding that these materials would later be disclosed to Standifer's defense team if the court concluded that the materials were relevant to “[N.G.'s] ability to accurately perceive or truthfully report [the] events” at issue in this case.

Standifer's attorney conceded that he was seeking the production of privileged records—that is, N.G. had an evidentiary privilege to refuse to produce these materials. However, the defense attorney asserted that even if the requested materials were protected by privilege, the superior court should still order N.G. to authorize the disclosure of the requested materials because (according to the defense attorney) N.G.'s privilege had to yield to the defendant's need for relevant evidence.

After considering Standifer's request, as well as the separate oppositions filed by the State and by N.G., the superior court granted Standifer's request without explanation or comment.

In essence, the superior court ordered the production of all of N.G.'s treatment records, albeit in a two-stage process. The initial portion of the court's order directed N.G. to disclose the names and addresses of all of her health care providers (during the previous two decades), and further directed N.G. to sign a release authorizing these health care providers to turn their records over to the superior court. In the second stage of the process, the court intended to order these health care providers to produce their files to the court, so that the court could inspect these files.

N.G. promptly sought reconsideration of the superior court's decision, but the superior court ultimately re-affirmed its earlier order. This time, the superior court offered a legal justification for its decision: the superior court declared that it was adopting the reasoning contained in a written decision issued earlier (May 13, 2011) by another superior court judge in another case— State v. Kalmakoff, File No. 3AN–09–14599 Cr.

The Kalmakoff case involved a similar court order—that is, an order directing the victim of an alleged crime to reveal the identity of all her health care providers, so that the court could then obtain all of the victim's psychotherapy records. In Kalmakoff, the superior court rejected the victim's argument that all of a person's psychotherapy records are privileged.

The superior court noted that, under Alaska Evidence Rule 504(b), the psychotherapist-patient privilege protects only “confidential communications”—as that term is defined in Evidence Rule 504(a)(4)—“made for the purpose of diagnosis or treatment of the patient's physical, mental, or emotional conditions”. The court reasoned that, because the privilege was limited to confidential communications made for these specific purposes, there might well be other information contained in a person's psychotherapy records that was not privileged— i.e., information that did not disclose the content of confidential communications.

Based on this reasoning, the superior court in Kalmakoff concluded that the witness's psychotherapy records were likely to contain both privileged information and non-privileged information—and that the only way to separate the privileged information from the non-privileged information was for the court to conduct an in camera inspection of all of the psychotherapy records.

This, then, was the justification that the superior court gave in the present case for its order requiring the production of all of N.G.'s psychotherapy records.

N.G. now appeals the superior court's decision.

An overview of the legal issues presented here

At the outset, we must point out that two distinct legal issues are presented in this case, but the superior court's order addresses only one of them.

As we have explained, the superior court's stated rationale for ordering the production of N.G.'s health providers' records was that these records probably contained both privileged and non-privileged information—because the psychotherapist-patient privilege protects only “confidential communications”. Based on this interpretation of the scope of the privilege, the superior court concluded that it needed to examine all of N.G.'s psychotherapy records in camera—so that the court could identify the non-privileged information, determine if that non-privileged information was relevant to assessing N.G.'s credibility as a witness, and (if so) disclose that information to Standifer's defense team.

Thus, one of the issues presented in this appeal is whether the superior court was correct in construing the psychotherapist-patient privilege in this limited fashion, and correct in presuming that N.G.'s psychotherapy records likely contained a substantial amount of non-privileged information.

But under Alaska law, even if all of the information in N.G.'s treatment records were privileged, this would not necessarily resolve the question of whether that information should be disclosed to the defense. Several times, this Court and the Alaska Supreme Court have approved trial judges' decisions to conduct in camera examinations of confidential or privileged...