R., Matter of, 48237-3

Decision Date04 March 1982
Docket NumberNo. 48237-3,48237-3
Citation641 P.2d 704,97 Wn.2d 182
PartiesIn the Matter of the Detention of R., et al., Appellants.
CourtWashington Supreme Court

Janet L. Rice, Wayne Lieb, Seattle-King County Public Defender Assn., Seattle, for appellant.

Kenneth O. Eikenberry, Atty. Gen., Olympia, Carol H. Rainey, Stephen Klasinski, Asst. Attys. Gen., Tacoma, for respondent.


These cases are before the court on petitions by Western State Hospital to extend for 90 days the detention of patients alleged to be gravely disabled. At each hearing, the attending psychiatrist gave his opinion, based on observations of and interviews with the patient, as to his or her mental condition. In each case the attorney for the patient objected to this testimony, claiming that it was subject to the physician-patient privilege. In each case the objection was overruled, and in each case further detention was ordered.

Each of the patients involved had been involuntarily committed for 14 days, pursuant to RCW 71.05.240. While in the hospital, each patient had been advised that he or she had a right to remain silent and that the interviews were not confidential.

The sole question before the court is: Does the physician-patient privilege apply in an involuntary commitment proceeding, where the issue is whether further treatment is needed, and where the patient has not been told that his psychiatrist is communicating with him solely for treatment purposes?

Involuntary commitments are covered under RCW 71.05, which was designed for the following purposes, among others:

(1) To end inappropriate, indefinite commitment of mentally disordered persons and to eliminate legal disabilities that arise from such commitment;

(2) To provide prompt evaluation and short term treatment of persons with serious mental disorders;

(3) To safeguard individual rights;

(4) To provide continuity of care for persons with serious mental disorders;

RCW 71.05.010(1)-(4).

The act provides a procedure for involuntary commitment, with express protection of the individual's due process rights. The initial detention is for 72 hours (RCW 71.05.150); then a hearing is necessary if the patient is to be detained for 14 additional days (RCW 71.05.230, .240). An additional hearing is required if it is believed that he needs further treatment (RCW 71.05.280-.310). This is the 90-day treatment period which is involved in these proceedings. There are also provisions for further extensions, after hearings (RCW 71.05.320). Provision for the waiver of the physician-patient privilege is found in RCW 71.05.250, which pertains to 14-day detentions. That section provides:

At the probable cause hearing the detained person shall have the following rights in addition to the rights previously specified:

(1) To present evidence on his behalf;

(2) To cross-examine witnesses who testify against him;

(3) To be proceeded against by the rules of evidence;

(4) To remain silent;

(5) To view and copy all petitions and reports in the court file.

The physician-patient privilege shall be deemed waived in proceedings under this chapter when a court of competent jurisdiction in its discretion determines that it is unreasonable for the petitioner seeking fourteen-day involuntary treatment to obtain a sufficient evaluation of the detained person by a psychiatrist or psychologist or other health professional and such waiver is necessary in the opinion of the court to protect either the detained person or the public.

Whenever the physician-patient privilege is deemed waived pursuant to this section, the waiver shall be limited to the introduction of relevant and competent medical records or testimony of an evaluation or treatment facility or its staff, a facility of the department of social and health services or its staff, or a facility certified for ninety-day treatment by the department of social and health services or its staff for the purpose of meeting evaluation requirements contained in chapter 10.77 RCW and chapter 71.12 RCW: Provided however, That the physician-patient privilege shall not be waived if the physician specifically identifies himself to the detained person as one who is communicating with that person for treatment only: And provided further, That the privilege shall not extend to incident reports involving the detained person.

The record maker shall not be required to testify in order to introduce medical records of the detained person so long as the requirements of RCW 5.45.020 are met except that portions of the record which contains opinions as to the detained person's mental state must be deleted from such records unless the person making such conclusions is available for cross-examination.

There is no comparable provision in the sections providing for a 90-day extension. However, 71.05.310 contains the following pertinent provision:

The burden of proof shall be by clear, cogent, and convincing evidence and shall be upon the petitioner. The person shall be present at such proceeding, which shall in all respects accord with the constitutional guarantees of due process of law and the rules of evidence pursuant to RCW 71.05.250.

This section incorporates, by reference, the provisions of RCW 71.05.250 as they apply to the rules of evidence. Standing alone, RCW 71.05.250 appears on its face to apply only where a petitioner is seeking an order for 14-day involuntary treatment. However, its terms are adaptable to other proceedings. In providing that the 90-day extension hearing shall accord with the rules of evidence pursuant to RCW 71.05.250, the legislature did not exclude the provision for waiver of the physician-patient privilege.

The physician-patient privilege is designed to render communications between physician and patient confidential, and thus allow freedom in the exchange of information to the end that the patient's ailments may be properly treated. State v. Boehme, 71 Wash.2d 621, 430 P.2d 527 (1967); State v. Miller, 105 Wash. 475, 178 P. 459 (1919). The waiver of the privilege in the present circumstances is also designed to facilitate treatment. There is statutory protection for the confidentiality of commitment records. 1 For these reasons, the compulsory waiver of the privilege benefits more than it harms the patient.

At common law there was no physician-patient privilege. However, most states, including Washington, have created a statutory privilege. See C. McCormick, Evidence §§ 98-105 (2d ed. 1972). RCW 5.60.060(4) reads:

(4) A regular physician or surgeon shall not, without the consent of his patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him to prescribe or act for the patient, but this exception shall not apply in any judicial proceeding regarding a child's injuries, neglect or sexual abuse, or the cause thereof.

The claim of privilege ordinarily arises in adversary proceedings. The proceeding is one designed for the protection of the patient, as well as the public. Of course, the patient is being held against his will and is entitled to scrupulous due process for that reason; but at the same time the purpose of the statute should not be sacrificed in order to preserve a privilege which has little value in the circumstances.

It is suggested that, unless the privilege is preserved for these patients, they will be reluctant to confide in the psychiatrists who treat them. But it is apparent from the very fact that these persons are hospitalized against their will, they are unable to recognize their need for help. Thus handicapped, they are apt to resist treatment and the confidences which it entails, in any event. We must assume that if the medical staff, endowed as it is with professional knowledge upon the subject, believed that to preserve the privilege would facilitate the treatment process in these circumstances, it would adopt some system which would eliminate the need for waiver. As it is, there is nothing before us to show that the compulsory waiver of the privilege has any significant effect on the treatment and recovery of involuntary mental patients.

In resolving a question of statutory construction, the spirit and intent of the law should prevail over the letter of the law. Janovich v. Herron, 91 Wash.2d 767, 592 P.2d 1096 (1979). Furthermore, if an act is subject to two interpretations, that which best...

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