Colorado Criminal Law – Why Did My Doctor Call The Police On Me? – Physician – Psychologist Confidential Communications In Child Abuse – Domestic Violation Cases
Colorado Criminal Law – Why Did My Doctor Call The Police On Me? – Physician – Psychologist Confidential Communications In Child Abuse – Domestic Violation Cases– Most of us trust the when we tell our doctors matters in confidence these secrets will be kept confidential. This is called the physician-patient privilege. In Colorado – starting in 1979, the Colorado state legislature started to impose on doctors the “duty” to report to law enforcement such things as bullet wounds or other injuries that the doctor believed were the result of a criminal act.
The law is § 12-36-135(1) C.R.S.
§12-36-135. Injuries to be reported – penalty for failure to report – immunity from liability
(1) (a) (I) Every licensee who attends or treats any of the following injuries shall reportthe injury at once to the police of the city, town, or city and county or the sheriff of the county in which the licensee is located:
(A) A bullet wound, a gunshot wound, a powder burn, or any other injury arising from the discharge of a firearm, or an injury caused by a knife, an ice pick, or any other sharp or pointed instrument that the licensee believes to have been intentionally inflicted upon a person;
(B) An injury arising from a dog bite that the licensee believes was inflicted upon a person by a dangerous dog, as defined in section 18-9-204.5(2) (b), C.R.S.; or
(C) Any other injury that the licensee has reason to believe involves a criminal act, including injuries resulting from domestic violence.
(II) Any licensee who fails to make a report as required by this section commits a class 2 petty offense, as defined by section 18-1.3-503 , C.R.S., and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars, or by imprisonment in the county jail for not more than ninety days, or by both such fine and imprisonment.
(IV) In addition to the report required by subparagraph (I) of this paragraph (b) to be filed by the employing medical facility, a licensee who attends or treats any of the injuries described in sub-subparagraph (A) of subparagraph (I) of paragraph (a) of this subsection (1) of a victim of a sexual assault shall also report the injury to the police or sheriff as required by paragraph (a) of this subsection (1).
(1.5) As used in subsection (1) of this section, unless the context otherwise requires:
(a) “Domestic violence” means an act of violence upon a person with whom the actor is or has been involved in an intimate relationship. Domestic violence also includes any other crime against a person or any municipal ordinance violation against a person when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.
(b) “Intimate relationship” means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.
(2) Any licensee who, in good faith, makes a report pursuant to subsection (1) of this section shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed with respect to the making of such report, and shall have the same immunity with respect to participation in any judicial proceeding resulting from such report.
[HMS – Section (b) (3) – which follows – permits the doctor or other licensee to violate the doctor patient privilege and testify as a witness in court.]
(3) Any licensee who makes a report pursuant to subsection (1) of this section shall not be subject to the physician-patient relationship described in section 13-90-107(1) (d), C.R.S., as to the medical examination and diagnosis. Such licensee may be examined as a witness, but not as to any statements made by the patient that are the subject matter of section 13-90-107(1) (d), C.R.S.
The Stated Reason For This Violation Of Trust? Public Policy
The Colorado state legislature has made exceptions to the confidentiality we expect as patients based upon ” the overriding public policy need for the information to become public.”
Similar Violations Of Trust Exist Under 19-3-311 – The Psychologist – Client Privilege
The psychologist-client privilege is breached when the Colorado psychologist is required to report child abuse or neglect under 19-3-311, 6 C.R.S. That breach of trust is not only legal – it is required!
Here is the law creating the privilege:
Section 13-90-107 provides in relevant part:
(1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:
.. (g) A licensed psychologist: shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment….
But IF a psychologist “has reasonable cause to know or suspect that a child has been subjected to abuse or neglect … (he or she) shall immediately report or cause a report to be made of such fact to the county department [of social services] or local law enforcement agency.”
The following Section – 19-3-311 removes the sacrosanct confidentiality so necessary in therapy. It states:
19-3-311. Evidence Not Privileged
(1) The incident of privileged communication between patient and physician, between patient and registered professional nurse, or between any person licensed pursuant to article 43 of title 12, C.R.S., or certified or licensed school psychologist and client, which is the basis for a report pursuant to section 19-3-304, shall not be a ground for excluding evidence in any judicial proceeding resulting from a report pursuant to this part
In addition, privileged communication shall not apply to any discussion of any future misconduct or of any other past misconduct which could be the basis for any other report under section 19-3-304.
[HMS – The following section removes the privilege from the husband – wife confidentiality]
(2) The privileged communication between husband and wife shall not be a ground for excluding evidence in any judicial proceeding resulting from a report pursuant to this part 3.
What The State Gives With One Hand – It Takes Away With The Other
The laws of confidentiality are contradictory at best. The reasons behind Section 19-3-311 state again and again…
“[T]he purpose of the statutory psychologist-patient privilege is to aid in the effective diagnosis and treatment of mental illness by encouraging the patient to fully disclose information to the psychologist without fear of embarrassment or humiliation caused by disclosure of such confidential information.”
Against this strong public policy for confidentiality – the Colorado State Legislative mandates and understandable but contradictory declaration states in the Colorado Child Protection Act §§ 19-3-301 to -316,
“it is the intent of the general assembly to protect the best interests of the children of this state and to offer protective services in order to prevent any further harm to a child suffering from abuse.”
A recent Colorado case reflects the absurdity of this situation – The result is this – once a professional such as a physician or psychologists reports confidential communications involving abuse or potential abuse – child, domestic or otherwise – to social services or to the police – ongoing post report therapy – (if that is even possible) – must be confidential, since these would be considered “post-report” therapeutic communications.
Summary and Conclusion Colorado Criminal Law – Why Did My Doctor Call The Police On Me? – Physician – Psychologist Confidential Communications In Child Abuse – Domestic Violation Cases
Reaching out to a Doctor, Psychologist or other medical professional has risks that exist today that did not exist in the in the not too distant past. A parent, spouse or significant other.
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Never stop fighting – never stop believing in yourself and your right to due process of law.
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