COURT SIDES WITH PATIENT ON CONFIDENTIALITY QUESTION

By News Service of Florida

A South Florida appeals court Wednesday ruled that a sheriff's deputy cannot testify about a conversation he heard between a patient he was guarding and a psychotherapist in a hospital emergency room. The 4th District Court of Appeal ruling said the facts of the case presented a first-of-its kind issue in Florida. The Broward County case stemmed from the arrest of Avery Topps on a felony cruelty-to-animals charge after a dog was stabbed to death. After allegedly stabbing the dog, Topps tried to admit himself to a hospital, and a deputy went to the hospital to arrest him. An emergency-room doctor acting as a psychotherapist conducted an examination to determine whether Topps should receive a psychiatric commitment or be cleared to go to jail. The deputy was present for security reasons and overheard Topps tell the doctor that he stabbed the dog. A circuit judge ruled that the deputy could not testify about the statement made by Topps, leading prosecutors to appeal. A three-judge panel of the 4th District Court of Appeal upheld the circuit judge's decision. "Admitting this statement into evidence over objection would effectively mean that an individual in custody must forego his right against self-incrimination to obtain necessary medical diagnosis and treatment,'' said Wednesday's opinion, written by Judge Mark Klingensmith and joined by judges Carole Taylor and Spencer Levine. "Requiring the relinquishment of this constitutional right as a condition of medical diagnosis and treatment for persons placed under arrest or otherwise in custody would be unconscionable. If the privilege were to be nullified by the mere presence of a law enforcement officer, confidential conversations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances giving rise to the need for treatment will probably result in prosecution or litigation. Given these facts, a person in (the) defendant’s position might not receive appropriate treatment, knowing they risked losing their confidentiality by answering questions posed to them by their psychotherapist."