Disclosure of Mental Health and Counseling Records

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WI Court of Supreme Court

Case Name: State of Wisconsin v. Alan S. Johnson

Case No.: 2019AP000664-CR

Officials: Rebecca Frank Dallet, J.

Focus: Disclosure of Mental Health and Counseling Records

Defendant was charged with sexually assaulting his son, T.A.J., and his daughter. Citing Shiffra, Defendant sought in camera review of T.A.J.’s mental health and counseling records. Patients have a statutory privilege to prevent disclosure of confidential communications with their health care provider that are made for the purposes of diagnosis or treatment. See Wis. Stat. § 905.04(2) (2019-20). In State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), however, the court of appeals created a process by which a criminal defendant could obtain a limited review by the court (in camera review) of a victim’s privately held, otherwise privileged health records. The State and a victim in a pending criminal case, T.A.J., ask the Supreme Court to revisit Shiffra, arguing that it was wrongly decided, is unworkable, and its rationale has been undermined by subsequent developments in the law.

The supreme court rules that Shiffra must be overturned. It is unsound in principle because it rests on a misinterpretation of the United States Supreme Court’s decision in Ritchie and harms the therapist-patient relationship. It is unworkable in practice because it is inherently speculative and cannot be applied consistently. And it has been undermined by developments in the law regarding sexual assault and domestic violence and by the adoption of new statutory and constitutional provisions protecting the rights of victims, and is therefore detrimental to coherence in the law.

Reversed

Decided 05/16/23

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