Rulings opening mental health reports in criminal trials
The Oregonian has won rulings in three
Tillamook and Lincoln) that mental health reports ordered
by the court
to determine the competency of a
defendant to stand trial are public
under the open courts provisions
of the state Constitution. Here is one
such ruling in the case of State
v. Morris (note that the defendant
specifically is notified that
there is no confidentiality). The evaluation follows the court ruling:
David W. Hantke Circuit Judge(503) 84.2-8014 Ext. 114
Rick W. Roll,
Circuit Judge (503) 842-2598 Ext. 112
CIRCUIT COURT
OF THE STATE OF
FOR THE
Trial Court
Administrator (503) 842-2596 Ext. 124
Calendering (503) 842-7914 Ext. 110
FAX (503)
842-2597
William B.
Porter, Tillamook County District Attorney
Office of the
Tillamook County District Attorney
Glenn Faber,
Attorney at Law
Moberg, Canessa, Faber & Hooky, P.C.
842 Broadway
Charles M.
Fryer
Attorney at
Law
101 SW
Charles F.
Hinkle, Attorney
Stoel, Rives, LLP
Re: State of
Circuit Court Case No.: 02-1283
On
Publishing Company’s Motion to Unseal
the reports prepared by. Dr
George Suckow, Dr. Richard Hulteng and the
regarding the defendant’s
capacity to proceed pursuant to ORS 161.360
and ORS 161.365.
During oral
argument, defendant objected to release of the
reports claiming the
psychotherapist-patient privilege pursuant to OEC
504. Following oral argument, the Court permitted the
Oregonian to file
additional argument to address
the psychotherapist-patient privilege.
With regard to
the privilege, the burden rests with the
defendant to show that he and
the information sought to be protected are
within the ambit of the
privilege. In its Memorandum regarding the
privilege, the Oregonian
identifies three (3) reasons why the defendant
cannot meet the burden.
Taking the Oregonian’ s third argument first, the Oregonian
argues that the reports fall
within a general exception of the
psychotherapist-patient
privilege under OEC 504 (4)(b)(A) in that the
communications are relevant to
the issue of the mental or emotional
condition of the defendant in a
proceeding in which the defendant relies
on the condition as an element
of his claim or defense. However, as was
argued by Mr. Faber on
proceed is not a claim or
defense. ORS 161.365(1) provides that whenever
the Court has reason to doubt
the defendant’s fitness to proceed by
reason of incapacity, the Court
may call to it’s assistance in
reaching it’s decision, any
witness and may appoint a psychiatrist or
psychologist to examine the defendant
and advise the Court. In this
case, Dr. Hulteng’s
report was submitted to the Court, providing the
Court with reason to doubt the defendant’s fitness to
proceed. The
State then requested that Dr. George Suckow
evaluate the defendant,
which was done. Finally, the
Court had the defendant evaluated at the
not apply.
However, the
other two (2) arguments made by the Oregonian have
merit. Specifically, that the
reports were prepared for the purpose of
drawing the Court’s attention to
the issue of the defendant’s
fitness to proceed and assist
the Court in evaluating the defendant’s
capacity to procee
d. Although communications made to Dr. Hulteng may
have been confidential
communications made for the purpose of diagnosis
or treatment of the defendant’s
mental or emotional condition, the
submission of the report to the
Court would constitute a waiver of any
privilege as to the contents of
the report and for the purpose of
determining the defendant’s
capacity to proceed. As to Dr. Suckow’s
report and the
confidential communication issue
in that the defendant participated in
the evaluations understanding
that the reports were for the Court’s
use in determining the defendant’s capacity to
proceed and each was
intended to be disclosed to at
least the Court and the State. In any
event, any privilege was waived
as to the contents of the reports when
submitted to the Court.
Even if the
psychotherapist-patient privilege applied and was
not waived, it is this Court’s
opinion that Article 1, Section 10 of
the Oregon Constitution requires
that the reports be unsealed. Although
in this case there was no
testimony taken nor formal Court proceeding
held, the three (3) reports were
used by the Court, pursuant to
agreement of the parties, in
reaching its decision on whether or not the
defendant had the capacity to
proceed. Therefore the Court relied upon
the reports in reaching its
decision and the reports were filed with the
Court for the purpose of allowing the Court to carry out
its role in
“administering justice” under
Article 1, Section 10.
If the reports
were to be received in evidence at a formal
hearing to determine the
defendant’s capacity and testimony were taken
from the doctors or other
persons, the public would have a right to be
present at that hearing and then
would have access to the testimony and
the reports.
What would
have been public in a Court hearing should not be
allowed to be kept secret when
the Court relied on the same information
in reaching its decision.
Finally, the
Court must balance the public’s right of access
to the reports against the
defendant’s ability to receive a fair
trial. One interest of the public is to know that
their Courts are
operating in a lawful manner.
There may be no other way to accommodate
this interest without disclosure
of materials relevant to the purpose of
the Court proceeding. In this
case that would be the determination of
the Defendant’s capacity to
proceed.
However, there
may be a way to accommodate the Defendant’s
ability to receive a fair trial
by allowing time to pass between
allowing public access to the
records and through the use of voir dire.
Since it appears the Defendant’s interests can be
appropriately
protected, the balance tilts in
favor of the public’s right to access.
The
Oregonian’s Motion is allowed.
DAVID W.
HANTKE
CIRCUIT COURT
JUDGE
DWH/mh
Department of
Human Services
(503) 945-2800
(Voice)
(503) 945-2996
(TTY)
FAX (503)
945-2807
FILED
CIRCUIT COURT
TILLAMOOK
COUNTY STATE COURTS
2003 AUG 14 PM 1:08
TRIAL COURT
ADMINISTRATOR
BY
The Honorable
David W. Hantke
RE: MORRIS,
Edward
WARD: COE
Dear Judge Hantke:
Please find
enclosed the report of the evaluation on the
above-named individual.
If you have
any questions, please do not hesitate to contact the
author of the report, who can be
reached at the telephone number listed
at the top of this page.
Sincerely,
Steven Fritz,
MD
Chief Medical
Officer
SF/rp
Encl.
03-07-15.COV/087.WRD/69987
REPORT OF
EVALUATION
NAME: MORRIS,
Edward
TYPE: Court
Ordered Evaluation
UNIT: Forensic
Evaluation Service
DATE OF
REPORT:
DATE OF
EVALUATION:
DOCKET
NUMBER(S):02-1283
IDENTIFYING
INFORMATION: This is the first
referral for Mr. Edward Morris,
a 38-year-old widowed white male, born
on
an unclassified Measure 11
felony in Tillamook County Circuit Court. The
defendant was referred for a
30-day inpatient evaluation of his ability
to aid and assist in his own
defense pursuant to Oregon Revised Statute
(ORS) 161.365, in an order dated
David W. Hantke.
EVALUATION
PROCEDURES AND INFORMATION: The defendant was
interviewed by Carlene Shultz, PsyD, on
and 35 minutes and an additional
50 minutes for psychological testing on
Present throughout the first three and a half hours of
the evaluation
was Gail Mason, PhD, as an
observer. Additional information considered
in this evaluation included:
1. Tillamook
County Court documents, including an indictment
dated
2. A factual
brief of the case provided by William B. Porter,
District Attorney for
17, 2003, for 50 minutes.
3. Law
Enforcement Data System (LEDS) criminal history sheets.
4. A report
from jail medical staff to Linda Brandeberry, LCSW,
on
5. A
Psychological Report by Richard J. Hulteng, JD, PhD,
dated
6. A
Psychiatric Report by George R. Suckow, MD, dated
June 6,
2003.
7. Summary and
case notes by Teresa Shelby, MD, for visits on
8. A letter
written by the defendant, dated
9. Raw
psychological test data obtained by Dr. Laura Sebastian
for prior
(MMPI-2) and Rorschach administrations.
10.
Edition, completed
11.
Personality Assessment Inventory (PAI), completed July 11,
2003.
DOCUMENTTION-EVALUATION
OSH-STK:
75069-MR 1-3/2002
MR#:
62-00-0779-00
NAME: MORRIS,
Edward
TYPE: Court
Ordered Evaluation
UNIT: Forensic
Evaluation Service
DATE OF
REPORT:
DATE OF
EVALUATION:
DOCKET
NUMBER(S):02-1283
PAGE: 2
12. Structured
Interview of Reported Symptoms (SIRS),
administered
13. Rorschach
Inkblot Test, administered
14. MacArthur Competency Assessment Tool Criminal
Adjudication (MacCAT-CA),
administered
15. Phone
conversation with Chuck Fryer, counsel for the
defense, for 30 minutes on
16. Phone
conversation with Richard J. Hulteng, JD, PhD, on
July
21, 2003, for 90 minutes.
17. Phone
conversation with George Suckow, MD, on
for 15 minutes.
18. A note
written by the defendant to the evaluator on July 18,
2003.
19.
Consultation with the Ward 48C Interdisciplinary Treatment
Team (IDT).
20. The
psychiatric admission.
21. Evaluation
observations by Gail Mason, PhD, dated July 25,
2003.
NOTIFICATION
OF RIGHTS: Prior to interview, the defendant was
advised of his rights and of the
limits of confidentiality.
Specifically, he was informed of his right to refuse to
answer questions
and to consult with his attorney
or to have his attorney present during
the interview. He was told that
none of the information he provided
would remain confidential and
that a report of the evaluation results
would be sent to the court and
the attorneys in the case. The defendant
expressed a clear understanding
of these rights, including his right to
have his attorney present as
“there might be all kinds of sensitive
questions asked that a
person
might not be in their best interest to
answer.” He further reported a
conversation with his attorney in which
his attorney had advised him to
proceed with the evaluation without his
attorney present. Mr. Morris indicated that he understood his
rights,
signed the Patients Right form,
and agreed to proceed with the
interview.
BACKGROUND
INFORMATION: The following information was obtained
from the defendant’s self-report
and available records.
SOCIAL/DEVELOPMENTAL
HISTORY: The defendant, Mr. Edward Morris,
was born and raised in
as his parents divorced when he
was 2 years of age. He describes his
mother as “a very nice
overweight woman.” He reports having had a
stepfather as a
DOCUMENTATION-EVALUATION
MR#:
62-00-0779-00
CONFIDENTIAL
George R. Suckow
Physician
William B.
Porter
District
Attorney
RE: Edward
Paul Morris
Dear Mr.
Porter:
At your
request I conducted a psychiatric evaluation of Edward
Paul Morris on
Facility in a conference room.
Present were myself, Mr. Morris, his
attorney Charles M. Fryer and yourself,
William Porter, District
Attorney of
advised of his rights including
the right to remain silent, knowledge
that anything he said could be
used in a court of law, the right to
consult his attorney before
making any statement, the right to ask his
attorney to be present (he was),
the right to not discuss or answer any
question at any time and to
understand that there is no privilege or
confidentiality between doctor
and patient in a court-ordered or
forensic examination. Mr. Morris
understood those rights and consented
to proceed.
Prior to the
interview I was asked by Mr. Fryer not to inquire
into the charges pending against
Mr. Morris other than his knowledge of
what he might be accused of.
Prior to
examining Mr. Morris I also had the opportunity to
review a report by Richard J. Hulteng, JD, Ph.D. concerning his
examinations of Mr. Morris; the
report being dated
previously been furnished by you
with transcripts of interviews of Mr.
Morris and had previously reviewed them, dated
copy of Mr. Morris’ military
records and an affidavit for a search
warrant dated
offense for which Mr. Morris is
currently charged. I also reviewed a
copy of a letter written by Mr.
Morris on Thursday the 24th of April,
2003.
Diagnosis:
Axis I:
v71.09, no diagnosis
Axis II:
301.9, personality disorder, mixed