Yaw ex rel. Broadhead v. Northwest Alabama Mental Health Center ( 2011 )

MURDOCK, Justice

(concurring specially).

I write separately to comment on the presumption that, when a psychotherapist invokes the privilege, he or she has the “authority” to do so: “The person who was the psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.” Ala. R. Evid. 503(c). In an argument made by Sheila Yaw in her brief to this Court, but not made to the trial court, see 68 So.3d at 801 n. 11, Yaw argues that Northwest Alabama Mental Health Center and Skip Newman’s invocation of the privilege in this case was not done on behalf of Dimoris Johnson, the patient. This argument is premised on the notion that the last clause of Rule 503(c), “but only on behalf of the patient,” contemplates a different issue than whether the psychotherapist has “authority” to invoke the privilege. In particular, Yaw argues that in order for Northwest and Newman to invoke the privilege “on behalf of Johnson” the disclosure prevented by the invocation of the privilege must be “prejudicial” in some way (exactly how is not explained), other than prejudicing the confidence of members of the community in their ability to make confidential disclosures to their physicians and the efficacy of the physicians’ advice or treatment, and the general interest of the community as a whole in the efficacy of that treatment. As stated in the opinion, however, whether the “on behalf of the patient” requirement (which presumably could be refuted by the production of a waiver from the patient) does in fact contemplate something more than the general presumption of authority (see generally 25 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 5541 (1989) (questioning whether the “on behalf of the patient” requirement fails only where the patient has waived the privilege or is deceased); see also id. at § 5553 (“[I]t is generally held that the court can assert the privilege on behalf of an absent patient, either on its own motion or that of a party.”)) is not an issue properly before us.