When the mental health treatment records of a rape victim are sought by the defendant, for use as trial evidence in a criminal prosecution, the presiding judge is obligated to determine whether, when contemplating such an order “requiring disclosure … the interests of justice significantly outweigh the need for confidentiality.” What section 33.13 of the New York State Mental Hygiene Law does define is the criteria a judge should use in striking that balance between the clinical need for confidentiality of those records and the right of a criminal defendant to “every man’s evidence.”
That determination, and application of those criteria, requires consideration of profoundly important philosophical, legal, ethical, and clinical principles and priorities, which will be examined in this continuing legal education seminar. These questions are, in the first instance, matters of legal ethical obligations, but they also implicate the ethical duty of disclosure born by practitioners in a variety of clinical disciplines including mental health providers, emergency department clinicians and primary care providers. Those clinical obligation in turn implicate the ethical obligations of lawyers, both those representing criminal defendants, and those advising clinicians, on their duty to advocate for preservation of the confidentiality rights of their patients. The panel will examine the ethical obligations born by each of the stakeholders in these circumstances, and each of their obligations to consider the ethical duties of the others.