Alabama – Mental Health Privilege and Child Abuse

The Alabama Supreme Court says that when the legislature provided immunity to mental health professionals who report sexual abuse of children, it impliedly repealed the statute providing a psychotherapist-patient privilege to the extent it conflicts with the immunity statute. The plaintiff in Marks v. Tenbrunsel, Case No. 1031515 (Sup. Ct. Ala. April 22, 2005) had sought psychological treatment from defendant Dr. Tenbrunsel and had obtained a pledge of confidentiality from him. Then Marks told Tenbrunsel in session that he had fondled the genitals of two little girls.

After consulting with a colleague, Dr. Lois Pope, Tenbrunsel told Marks that he could not honor the confidentiality agreement, and then Tenbrunsel (apparently) reported the suspected sexual abuse to Madison County DHR. Marks sued Tenbrunsel and his colleague for malpractice, misrepresentation of material facts, fraud, and fraudulent deceit. The defendants moved to dismiss pursuant to Rule 12(b)(6) (failure to state a claim on which relief could be granted). The trial court granted the motion, and Marks appealed.

The Supreme Court affirmed the trial court’s dismissal. In his opinion, Justice Lyons reasoned that the defendants were not required to report Marks under Ala. Code § 26-14-3 (mandatory reporting of suspected sexual abuse), because they were not “called upon to render aid or medical assistance to any child.” However, the defendants were permitted to report the suspected sexual abuse pursuant to Ala. Code § 26-14-4 (voluntary reporting of suspected sexual abuse) and therefore protected from liability by Ala. Code § 26-14-9 (immunity from liability) as long as they made the report in good faith.

Marks also argued that the psychotherapist-patient privilege extended by Ala. Code § 26-14-9 effectively “trumps” the immunity provided by § 26-14-9. Pointing out that the legislature enacted the immunity provisions of § 26-14-9 after it had enacted the psychotherapist-patient privilege in § 26-14-9, the Supreme Court said that the legislature had impliedly repealed the psychotherapist-patient privilege to the extent it conflicted with the grant of immunity.

The last expression of legislative will is § 26-14-9, which confers immunity to persons who make good-faith reports of child abuse pursuant to Chapter 14. Section 26-14-4, which provides for permissive reporting of suspected child abuse, applies to “any person” making such a report. This latter act, § 26-14-9, impliedly repeals anything to the contrary in the earlier enacted § 34-26-2, which recognizes a psychotherapist-patient privilege. The rule that implied repeal is disfavored when the earlier act is specific and the subsequent act is general does not apply here. Chapter 14, entitled “Reporting of Child Abuse or Neglect,” is not a general or broad act that cannot impliedly repeal an earlier specific act.

In his dissent, Justice Parker agreed that the immunity provision applied to Pope and agreed with the dismissal as to her. However, he disagreed with the majority’s conclusion that the legislature had impliedly repealed the psychotherapist-patient privilege and therefore dissented to the dismissal as to Tenbrunsel.

For mental health professionals, this is an important clarification, and the news is basically good. If you are called on to render aid to a child and you know or suspect the child to be a victim of child abuse or neglect, you must report it.

On the other hand, if you discover that abuse or neglect is occurring and are not providing aid or assistance to a child, you need not report it but may in your discretion elect to report it voluntarily, even if you are in a confidential relationship with the suspected perpetrator of the abuse. In either case, if you report suspected child abuse or neglect, your reporting will continue to be covered by the grant of immunity in Ala. Code § 26-14-9.

The downside of this ruling is the chilling effect it will have on communications between the mental health professional and his or her client. If there ever was an expectation of confidentiality for communications about child abuse, it’s gone now. If your client seems about to share with you information that might not be subject to the privilege, you may want to stop them before they do and make sure they understand the ramifications of what they’re about to tell you.