In Maryland, does a therapist have to report suspected child abuse if the patient was referred by a lawyer?

Plain-English summary

The State's Attorney for Baltimore County asked the Attorney General in 1990 whether a mental health provider could stay silent about suspected child abuse if the person who disclosed it had been sent to the provider by a lawyer. The question came out of a memorandum from the director of a Johns Hopkins clinic, which told patients that if an attorney referred them for evaluation, anything they said would not have to be reported, citing a Maryland court decision.

The Attorney General concluded that the memorandum was wrong on that point. Maryland's child abuse reporting law required health practitioners to report suspected abuse or neglect "notwithstanding any other provision of law, including any law on privileged communications," so the attorney-client privilege gave a mental health provider no cover for withholding a report. The opinion recognized one narrow exception: if the attorney referred the person to the provider after a criminal case against that person had already been started, and the evaluation was part of preparing a defense, then reporting could interfere with the Sixth Amendment right to counsel. Outside that situation, a psychiatrist or other health practitioner had an unqualified duty to report.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion interpreted §§5-704 and 5-705 of the Family Law Article and the attorney-client privilege provisions of the Courts Article as they stood in early 1990, shortly after the General Assembly repealed (effective July 1, 1989) a narrow exception that had let psychiatrists treating pedophilia avoid reporting in some circumstances. Maryland's mandatory reporting statutes and privilege law have been amended repeatedly since; confirm the current text before relying on any specific section number or duty described here.

Common questions

If a patient tells a therapist about child abuse, does the therapist have to report it even if a lawyer sent the patient?
Yes, under this 1990 opinion. The Attorney General read Maryland's reporting law to require health practitioners to report suspected child abuse or neglect "notwithstanding any other provision of law, including any law on privileged communications," so the attorney-client privilege did not excuse a mental health provider from reporting. The one exception the opinion recognized was a referral made after criminal charges had already been filed, as part of preparing a defense.

Why did the attorney-client privilege not protect these disclosures?
The opinion explained that the privilege is generally a rule of evidence, not a constitutional right, and that the General Assembly is free to override it by statute unless doing so violates a constitutional protection. Maryland's reporting statute expressly overrode privilege claims for health practitioners. The privilege could take on constitutional weight only once a person's Sixth Amendment right to counsel had attached, which the opinion said happens after a criminal proceeding has begun.

What was the exception for patients referred by a lawyer during a criminal case?
If an attorney referred a client to a mental health provider after a criminal proceeding against that client had already been initiated, and the evaluation was part of preparing the defense, the opinion said reporting could interfere with the Sixth Amendment right to counsel. It drew that line from State v. Pratt, a Maryland case in which a psychiatrist examined a defendant, at her lawyer's request, to support an insanity plea after indictment.

Did this opinion change the privacy of what someone tells a psychiatrist?
The opinion noted that the patient-psychiatrist privilege existed only by legislative grant, not under the Constitution, so the legislature could set its limits. Maryland had repealed, effective July 1, 1989, a narrow exception that had let psychiatrists treating pedophilia avoid reporting in some circumstances, so by the time of this opinion mental health providers had an unqualified duty to report.

Background and statutory framework

Maryland's child abuse reporting scheme sat in two sections of the Family Law Article. FL §5-704 covered a listed group of professionals, including "each health practitioner, police officer, or educator or human service worker," and required them to report when they had reason to believe a child had been abused or neglected, "[n]otwithstanding any other provision of law, including any law on privileged communications." FL §5-704(c) set out what the report had to contain. FL §5-705 covered everyone else, and its list of exceptions included one for information that would be protected by the attorney-client privilege or by a constitutional right to counsel, at FL §5-705(a)(2)(ii) and (iii). The key structural point in the opinion was that the privilege carve-out lived in §5-705 (all other persons), not in §5-704 (health practitioners), so a psychiatrist or therapist could not claim it.

The opinion treated psychiatrists and other mental health providers as "health practitioners" under FL §5-701(h), which meant they fell under §5-704's unqualified duty. It also noted that a narrow former exception, at former FL §5-704(b), which had relieved practitioners treating pedophilia from reporting in limited circumstances, had been repealed by Chapter 730 (House Bill 1210) of the Laws of Maryland 1989. On the privilege side, the opinion pointed to §9-108 of the Courts Article (the attorney-client privilege) and to the statutory patient-psychiatrist privilege at §§9-109 and 9-121 of the Courts Article, observing that the General Assembly could abrogate either one so long as it did not run into a constitutional bar.

The constitutional analysis turned on when the Sixth Amendment right to counsel attaches. Quoting Clutchette v. Rushen, the opinion noted that the attorney-client privilege is ordinarily just a rule of evidence and has not been held a constitutional right, though governmental interference with the defendant-counsel relationship can implicate the Sixth Amendment in some situations. Under Kirby v. Illinois, the right to counsel attaches only after adversary judicial proceedings have begun. The opinion read State v. Pratt, in which a psychiatrist examined an already-indicted defendant at her lawyer's request to support an insanity plea, as consistent with that limit: the constitutional concern arose because the consultation followed indictment, not because a lawyer had made the referral. So the dividing line the opinion drew was the initiation of a criminal proceeding, not the mere involvement of an attorney.

Citations and references

Statutes:

• FL §5-704, requiring listed professionals, including each health practitioner, to report suspected child abuse or neglect notwithstanding any privilege law
• FL §5-704(c), specifying the contents of the required report
• FL §5-705, the reporting duty for all other persons, with exceptions
• FL §5-705(a)(2)(ii) and (iii), the attorney-client-privilege and constitutional-right-to-counsel exceptions available under §5-705
• FL §5-701(h), defining "health practitioner"
• FL §5-701(b) and FL §5-701(n), defining "abuse" and "neglect"
• former FL §5-704(b) and former FL §5-701(o), the since-repealed pedophilia-treatment reporting exception and its definition
• §9-108 of the Courts Article, the attorney-client privilege
• §§9-109 and 9-121 of the Courts Article, the statutory patient-psychiatrist/psychologist/social-worker privilege
• Chapter 730 (House Bill 1210) of the Laws of Maryland 1989, repealing the pedophilia-treatment reporting exception

Cases:

• Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir. 1985), that the attorney-client privilege is generally a rule of evidence, not a constitutional right, though interference with the defendant-counsel relationship can implicate the Sixth Amendment
• State v. Pratt, 284 Md. 516, 398 A.2d 421 (1979), the Maryland decision on a post-indictment psychiatric examination arranged by defense counsel
• Kirby v. Illinois, 406 U.S. 682, 688 (1972); Brewer v. Williams, 430 U.S. 387, 398 (1977); and In re Groban's Petition, 352 U.S. 330, 333 (1957), on when the Sixth Amendment right to counsel attaches
• United States v. Boffa, 513 F. Supp. 517, 522 (D. Del. 1981), and Tornay v. United States, 840 F.2d 1424 (9th Cir. 1988), that intrusion occurring before indictment predates attachment of the right to counsel
• Bremer v. State, 18 Md. App. 291, 334, 307 A.2d 503 (1973), that the patient-psychiatrist privilege exists by legislative grant, not constitutional right
• State v. Tichnell, 306 Md. 428, 509 A.2d 1179 (1986), that the right to counsel under Article 21 of the Maryland Declaration of Rights is indistinguishable from the Sixth Amendment right

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 76-80 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CHILD ABUSE

Attorney-Client Privilege — Constitutional Law — Sixth Amendment — Duty of Health Practitioners to Report Child Abuse or Neglect Even After Attorney Referral

February 8, 1990

The Honorable Sandra A. O'Connor
State's Attorney for Baltimore County

 You have requested our opinion on an issue concerning the reporting of child abuse or neglect by mental health providers. Specifically, your question is whether the attorney-client privilege permits mental health providers to refrain from reporting suspected child abuse or neglect if the person providing the information was referred by an attorney.

 For the reasons stated below, we conclude that a mental health provider must report instances of suspected child abuse or neglect, even if the person relating the information was referred to the provider by an attorney, unless the mental health provider is participating in the preparation of a defense to a criminal proceeding that has already been initiated.

I

Background

 You have forwarded a copy of a memorandum from Dr. Fred S. Berlin, Director of the Johns Hopkins Sexual Disorders Clinic, to all patients and prospective patients of that clinic, dated July 1, 1989, in which Dr. Berlin summarizes the requirements of Maryland law about the reporting of suspected child abuse. The purpose of the memorandum was to inform patients that if they "tell any health care provider, including us, about any instance of sexual behavior involving a child who was under your care, custody, or supervision, whether such behavior was recent or in the more distant past, we will be required to report." (Emphasis in original.)

 However, Dr. Berlin also included the following passage in this memorandum:

      Because giving us any such information could result in criminal prosecution, and because we are not in a position to give you legal advice, we recommend that you first consult an attorney before deciding whether or not you wish to disclose in full or in part any such information to us .... If you are referred to us by an attorney for evaluation, according to Maryland's highest court (State v. Pratt) any information you give us does not have to be reported.

(Emphasis in original.) The last sentence of this portion of Dr. Berlin's memorandum gives rise to your question.

II

Applicable Statutes

 The reporting of suspected child abuse or neglect is governed by §§5-704 and 5-705 of the Family Law Article ("FL" Article). FL §5-704 requires reporting by members of certain specified professions, including each health practitioner: "Notwithstanding any other provision of law, including any law on privileged communications, each health practitioner, police officer, or educator or human service worker, acting in a professional capacity, who has reason to believe that a child has been subjected to" abuse or neglect is required to notify the appropriate authorities.1 FL §5-704(c) specifies the contents of the required report.

 FL §5-705 addresses the duty of all other persons: "Except as provided in paragraphs (2) and (3) of this subsection, notwithstanding any other provision of law, including a law on privileged communications, a person other than a health practitioner, police officer, or educator or human service worker who has reason to believe the child has been subjected to abuse or neglect" is required to notify the appropriate authorities. One of the specified exceptions is that a person covered by FL §5-705 is not required to provide notice "if the notice would disclose matter communicated in confidence by a client to the client's attorney or other information relating to the representation of the client ... or ... in violation of any constitutional right to assistance of counsel." FL §5-705(a)(2)(ii) and (iii).

 Psychiatrists and other mental health providers are "health practitioners" and therefore are subject to the reporting requirements in FL §5-704. Prior to July 1, 1989, health practitioners who specialized in the psychiatric treatment of pedophilia were not required to report under certain circumstances. However, this exception to the reporting obligation of FL §5-704 was repealed by Chapter 730 (House Bill 1210) of the Laws of Maryland 1989.2

 In our view, the statutory language could not be clearer. Health practitioners, including mental health providers, have an unqualified duty to report, "[n]otwithstanding any other provision of law, including any law on privileged communications ...." (Emphasis added.) Except to the extent that the Constitution limits its discretion, the General Assembly is free to abrogate the attorney-client or any other common law or statutory privilege.3 FL §5-704 — especially construed in light of the repeal of the "pedophilia" exception — reflects a legislative decision that, important as the policies underlying the privilege may be, nevertheless health practitioners and the other specified groups must report suspected child abuse or neglect.4

III

Constitutional Considerations

 "Standing alone, the attorney-client privilege is merely a rule of evidence; it has not yet been held a constitutional right." Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir. 1985). See generally Larkin, Federal Testimonial Privileges §2.01, at 2-1 n.3 (1989) (citing cases).5

 Yet it is also true, as the court in Clutchette observed, that "[i]n some situations ... governmental interference with the confidential relationship between a defendant and his counsel may implicate Sixth Amendment rights." 770 F.2d at 1471. The case mentioned by Dr. Berlin, State v. Pratt, 284 Md. 516, 398 A.2d 421 (1979), makes this point. The Court of Appeals wrote that although the attorney-client privilege has "never [been] given an explicit constitutional underpinning, the privilege is, nevertheless, closely tied to the federal, as well as this State's constitutional guarantees of the effective assistance of counsel and could, if limited too severely, make these basic guarantees virtually meaningless." 284 Md. at 520.

 However, "it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him." Kirby v. Illinois, 406 U.S. 682, 688 (1972). See also, e.g., Brewer v. Williams, 430 U.S. 387, 398 (1977); In re Groban's Petition, 352 U.S. 330, 333 (1957). Hence, an "alleged governmental intrusion into the defendants' attorney-client relationships ... [that] occurred long before any of the defendants were indicted ... thus [occurred] before their Sixth Amendment right to assistance of counsel had attached." United States v. Boffa, 513 F. Supp. 517, 522 (D. Del. 1981), aff'd in part and rev'd in part on other grounds 688 F.2d 919 (3d Cir. 1982). See also, e.g., Tornay v. United States, 840 F.2d 1424 (9th Cir. 1988).

 State v. Pratt is entirely consistent with this limitation on the application of the Sixth Amendment.6 In that case, the psychiatrist whose testimony was held to have breached the attorney-client privilege "had examined the accused at the request of her attorney after being retained by him to aid in preparing support for the [defendant's] insanity plea" — that is, after indictment. 284 Md. at 519. There is no suggestion in State v. Pratt of any constitutional right to maintain the secrecy of a consultation with a psychiatrist, even one instigated by an attorney, that occurs prior to the initiation of a criminal proceeding.

IV

Conclusion

 In summary, it is our opinion that a mental health provider who learns of an instance of child abuse or neglect must report it, regardless of whether the person revealing the information was referred by an attorney. The only exception is if the attorney's referral occurs after the initiation of a criminal proceeding against a defendant, as part of the attorney's trial preparation.

                                           J. Joseph Curran, Jr.
                                           Attorney General

                                           Jack Schwartz
                                           Chief Counsel
                                             Opinions and Advice

1
A "health practitioner" is "any person who is authorized to practice healing under the Health Occupations Article." FL §5-701(h). The definitions of "abuse" and "neglect" are set out in FL §5-701(b) and (n), respectively.

2
The exception appeared as former FL §5-704(b):

      A health practitioner who specializes in the psychiatric treatment of pedophilia is not required to report sexual abuse under subsection (a)(1)(i) of this section if:
      (1) The health practitioner's reason to believe that a child has been subjected to sexual abuse is based exclusively on a report made to the health practitioner by an individual stating the individual sexually abused the child;
      (2) The health practitioner is providing psychiatric treatment to the individual for the purpose of curing the individual's pedophilia; and
      (3) The sexual abuse occurred prior to the time that the individual began the psychiatric treatment with the health practitioner.

 The term "pedophilia" was defined in former FL §5-701(o).

3
The common law attorney-client privilege is now embodied in §9-108 of the Courts Article: "A person may not be compelled to testify in violation of the attorney-client privilege." By statute, the General Assembly has created a privilege for communications between a patient and the patient's psychiatrist, psychologist, or licensed certified social worker. §§9-109 and 9-121 of the Courts Article.

4
By preserving the attorney-client privilege in FL §5-705, the General Assembly struck a different policy balance for those subject to the reporting requirements of that section.

5
This portion of the opinion discusses constitutional issues regarding the attorney-client privilege only, because "[t]here is no constitutional right to the privilege of communication between patient and psychiatrist. It exists by legislative grant, and ordinarily the legislature may provide the conditions under which it is applicable." Bremer v. State, 18 Md. App. 291, 334, 307 A.2d 503 cert. denied 269 Md. 755 (1973) cert. denied 415 U.S. 930 (1974).

6
The right to counsel under Article 21 of the Maryland Declaration of Rights is indistinguishable from that under the Sixth Amendment. State v. Tichnell, 306 Md. 428, 509 A.2d 1179 (1986).