Metropolitan News-Enterprise


Thursday, May 9, 2013


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Court of Appeal Rules:

Reporting Law Does Not Trump Attorney-Client Privilege


By a MetNews Staff Writer


The Child Abuse Neglect and Reporting Act does not obligate a therapist working for a juvenile defense attorney to disclose communications by the child, even if they contain reveal child abuse or contain threats of violence, the Court of Appeal for this district ruled yesterday.

“In the absence of clear legislative guidance, we decline to read into CANRA a reporting requirement that contravenes established law on confidentiality and privilege governing defense experts and potentially jeopardizes a criminal defendant’s right to a fair trial,” Presiding Justice Dennis Perluss wrote for Div. Seven.

The court reiterated and expanded upon its Feb. 25 holdings in Elijah W. v. Superior Court (People), 213 Cal. App. 4th 1343. The court then held that a juvenile whose competency is in question may go outside the court’s panel to obtain the assistance of an expert witness, and that the expert is a member of the defense team and thus bound by attorney-client privilege as to statements made during the evaluation.

The panel sided with the Public Defender’s Office, which had requested the appointment of a non-panel expert after every expert on the panel said they would feel obligated to notify law enforcement or child welfare authorities if the client said that he or she had been subject to child abuse or neglect, or if the child made threats against others.

The situation arose after the juvenile, identified in the opinion as 10-year-old Elijah W., was charged in December 2011 with arson and recklessly causing a fire. The public defender asked that Dr. Catherine Scarf be appointed to assist the defense as a mental health expert.

Superior Court Referee Robert Leventer denied the motion in accordance with the court’s “Amended Competency to Stand Trial Protocol.” Under the protocol, if the court entertains a doubt as to a juvenile’s competency, it is to appoint an expert from the Juvenile Competency to Stand Trial panel to perform an evaluation.

Appointments from the panel are to be made on a rotating basis.

The public defender argued in support of the motion to appoint Scarf that all five JCST panelists for Pasadena had said that regardless of attorney-client privilege, they would have to report evidence of abuse or neglect under the CANRA, or of threats, pursuant to Tarasoff v. Regents of California (1976) 17 Cal.3d 425. Scarf, Elijah’s counsel declared, had said she would only report such statements to defense counsel.

In a lengthy written opinion, Leventer called the issue “merely academic” because there was no indication that a case had ever occurred “where a minor has divulged child abuse or made a threat to commit a crime during a competency evaluation and the statement was later introduced in court or even prompted a report” and there was only a “remote” possibility of this occurring.

He added that the protocol was consistent with the controlling statute, Welfare and Institutions Code Sec. 709, and concluded that it does not violate the attorney-client privilege.

The public defender sought a writ of mandate, arguing that the protocol violates the federal constitutional right to counsel. The Court of Appeal, which initially granted the writ, granted the district attorney’s motion for rehearing based on CANRA.

But Perluss yesterday said the writ should issue because CANRA does not override the child’s right to confidentiality among the defense team.

The presiding justice rejected Leventer’s suggestion that the possibility of a privileged disclosure by the juvenile is so remote that it should not be considered.

“It is certainly plausible, for example, that a young child accused of setting fires is acting out following some form of traumatic experience, perhaps even child abuse,” Perluss wrote, noting that the possibility that a child abuse report was filed was referred to in the delinquency petition.

“Waiting to address these questions until the arguably confidential information is disclosed is too late if the psychologist retained to assist the defense believes disclosure is mandatory and the child is, for whatever reason, unwilling to waive his privilege or authorize its disclosure,” he added.

 He went on to say that it is unclear whether Tarasoff, which renders mental health professionals potentially liable for tort damages for failure to disclose that a patient has threatened physical harm, applies to an expert working for a defense attorney. And even if it does, Perluss concluded, it does not necessarily require the divulging of privileged communications.

Tarasoff, he noted, is based on the therapist’s duty of due care, and he cited Scarf’s declaration that she believed she would be satisfying that duty by reporting any threats to defense counsel.

Perluss reasoned:

“We cannot evaluate in advance whether Dr. Scarf’s intended notification of Elijah’s attorney will insulate her from liability in any particular situation, assuming she owes a Tarasoff-type duty to a potential victim in the first place.  But her position is certainly reasonable, and her willingness to safeguard the confidentiality of Elijah’s communications at the risk of personal liability should not have been discounted by the juvenile court.”

Attorneys on appeal were Deputy Public Defenders Albert J. Menaster, Lara Kislinger and Megan N. Gallow for Elijah and Deputy District Attorneys Roberta Schwartz and Cassandra Hart for the prosecution.

The case is Elijah W. v. Superior Court (People), B241011.


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