An Expert’s Dilemma In Reporting Child Abuse.

Child AbuseAt issue here are two divergent legislative schemes: 1) An expert engaged to assist a lawyer in representation of a client is obligated to maintain the confidentiality of client communications. [Evidence Code sections 912 and 952.]; 2) Under the Child Abuse and Neglect Reporting Act [CANRA; Penal Code section 11164, et seq.], psychiatrists, psychologists, clinical social workers and other mental health professionals are “mandated reporters” and, as such, have an affirmative duty to report suspected child abuse or neglect to a child protective agency or other appropriate authority. Failure to report suspected child abuse is a misdemeanor. [Penal Code section 11166, subdivision (c).] The duty to report child abuse is not excused or barred by the psychotherapist-patient privilege of Evidence Code section 1014. (Penal Code section 11171.2 subdivision (b); People v. Stritzinger (1983) 34 Cal.3d 505, 512, [668 P.2d 738; 194 Cal.Rptr. 431];  Evidence Code section 1027.)

The lawyer for a juvenile accused of a crime requested the court to appoint a psychologist to assist in defending the juvenile. The court denied a request to appoint a psychologist who was not a member of the court’s panel, whose members informed the juvenile’s lawyer they would report to authorities any information of child abuse or neglect or Tarasoff threats. [See, Tarasoff v. Regents of California (1976) 17 Cal.3d 425, [551 P.2d 334; 131 Cal.Rptr. 14]. The juvenile court denied the motion. The appellate court reversed, stating:  “The court erred in limiting [the juvenile’s] choice of expert assistance in this manner. 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. Accordingly, we grant his petition for a writ of mandate and direct the court to vacate its order denying the motion to appoint [a named psychologist who indicated she would abide by duty of confidentiality] as a defense expert and to issue a new order granting the motion.” Elijah W. v.  Sup. Ct. (The People) (Cal. App. Second Dist., Div. 7; May 8, 2013) 216 Cal.App.4th 140.

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