                            [J-76-2019] [MO: Mundy, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


 IN THE INTEREST OF: J.M.G., A MINOR               :   No. 18 MAP 2019
                                                   :
                                                   :   Appeal from the Order of the
 APPEAL OF: J.M.G.                                 :   Superior Court dated May 18, 2018,
                                                   :   Reconsideration Denied July 26,
                                                   :   2018, at No. 476 MDA 2017,
                                                   :   Affirming the Order of the
                                                   :   Cumberland County Court of
                                                   :   Common Pleas, Juvenile Division,
                                                   :   dated March 15, 2017 at Nos. CP-
                                                   :   21-CV-0003322-2017 & CP-21-JV-
                                                   :   0000206-2014.
                                                   :
                                                   :   ARGUED: September 12, 2019


                                 CONCURRING OPINION


JUSTICE BAER                                                      DECIDED: April 22, 2020
       The majority creates a per se rule that the harmless error doctrine is inapplicable

to violations of the Section 5944 psychiatrist/psychologist-patient privilege in cases

involving Act 21 juvenile civil commitment proceedings. I respectfully disagree. Instead,

I would treat the Section 5944 privilege in Act 21 proceedings in the same manner that

this privilege is treated in criminal cases, i.e., allow for the application of a harmless error

analysis in the appropriate case. In applying the harmless error doctrine to the facts

presented, however, I would hold that the violation of the psychiatrist/psychologist-patient

privilege at issue was not harmless. Accordingly, I concur in the majority’s mandate to

reverse the judgment of the Superior Court and remand the matter for a new commitment

hearing based upon J.M.G.’s properly redacted records.
         I begin by expressing my complete agreement with the majority’s discussion of the

purpose of Section 5944, as well as the policy considerations at stake in a juvenile

commitment proceeding under Act 21.1 As the majority observes, the Section 5944

privilege “is based upon a strong public policy that confidential communications made by

a patient to a psychiatrist or psychologist should be protected from disclosure, absent

consent or waiver.” Majority Opinion at 11 (quoting Commonwealth v. Counterman, 719

A.2d 284, 295 (Pa. 1998)). Further, I agree that the policy goals underlying the Section

5944 privilege are “to strengthen and protect the therapeutic relationship between a

patient and his or her mental health treatment providers, without which the goals of this

Commonwealth’s mental health treatment policies could not be achieved.”              Majority

Opinion at 12.

         The majority acknowledges that Act 21 provides “for assessment of juveniles who

have been adjudicated delinquent for an act of sexual violence and have been subject to

an institutional placement where he or she has remained through his or her 20th birthday.”

Majority Opinion at 14; 42 Pa.C.S. § 6358(a). I concur that a core motivation for Act 21’s

enactment is to assure continued, necessary mental health treatment to juveniles.

Majority Opinion at 15. It is beyond cavil that the confidential nature of the juvenile’s

1   The privilege is statutorily defined as follows:
         § 5944. Confidential communications to psychiatrists or licensed
         psychologists.
                 No psychiatrist or person who has been licensed under the act of
         March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without
         the written consent of his client, examined in any civil or criminal matter as
         to any information acquired in the course of his professional services in
         behalf of such client. The confidential relations and communications
         between a psychologist or psychiatrist and his client shall be on the same
         basis as those provided or prescribed by law between an attorney and
         client.
42 Pa.C.S. § 5944.


                                [J-76-2019] [MO: Mundy, J.] - 2
communications with his or her mental health professional is the sine qua non of effective

mental health treatment.

       In my view, however, recognition of the critical importance of the confidential

nature of communications between a juvenile, who is the subject of an Act 21 commitment

proceeding, and his or her psychotherapist does not lead to the conclusion that a violation

of the Section 5944 privilege can never be deemed harmless in an Act 21 context or,

indeed, in any other context. In concluding to the contrary, the majority reasons that,

“[s]imilar to the types of constitutional errors the United States Supreme Court has

deemed so basic to a fair trial that application of the harmless error doctrine is

inappropriate, we deem scrupulous adherence to the psychotherapist-patient privilege to

be basic to fair Act 21 proceedings.” Majority Opinion at 18 (citing Chapman v. Cal., 386

U.S. 18, 23 (1967) (holding that “there are some constitutional rights so basic to a fair trial

that their infraction can never be treated as harmless error”)).

       I respectfully disagree. The High Court in Chapman identified some specific

constitutional rights that could never be treated as harmless error, including the right to

counsel and the right to an impartial judge. Chapman, 386 U.S. at 23 n.8 (internal

citations omitted). These rights embody the very essence of a fair trial. I do not find the

statutory violation of the Section 5944 privilege in an Act 21 commitment proceeding to

be akin to the aforementioned constitutional rights. To illustrate, the juvenile, as any

mental health patient, discloses a vast amount of information to his or her mental health

provider, involving the individual’s thoughts, fears, feelings, and actions. All of these

communications disclosed during treatment are privileged.          See 42 Pa.C.S. § 5944

(protecting as privileged “any information acquired in the course of [the psychiatrist’s or

the psychologist’s] professional services in behalf of such client”). Significantly, however,

not all of the information disclosed by the juvenile to the mental health professional has




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relevance to an Act 21 assessment, which examines whether the juvenile requires further

involuntary mental health treatment. See 42 Pa.C.S. § 6358(c) (requiring the Sexual

Offender Assessment Board to conduct an assessment of whether the juvenile is in need

of commitment for involuntary treatment due to an enumerated mental abnormality or a

personality disorder, either of which results in serious difficulty in controlling sexually

violent behavior).

       Accordingly, where the court finds that the violation of the Section 5944 privilege

did not prejudice in any way the determination of whether the juvenile is in need of

involuntary treatment, I would deem the violation harmless. Such scenario is clearly

distinct from a tainted proceeding involving, for example, a lack of counsel or a biased

jurist, as the erroneously disclosed information has no bearing on the pertinent legal

determination. Thus, I respectfully disagree with the majority that violations of the Section

5944 privilege in an Act 21 setting are per se unamenable to a harmless error analysis.

       Our intermediate appellate courts have taken a similar approach and have applied

the harmless error doctrine in criminal cases involving the Section 5944 privilege. See

Commonwealth v. Fewell, 654 A.2d 1109, 1117 (Pa. Super. 1994) (holding that a violation

of the Section 5944 privilege in a criminal context was harmless error as the psychiatrist’s

testimony was merely cumulative of other untainted testimony); Commonwealth v. Flynn,

460 A.2d 816, 823 (Pa. Super. 1983) (holding that to the extent the trial court erred in

admitting a psychiatrist’s testimony in violation of the Section 5944 privilege, such error

was harmless because the trial court found expressly that the defendant was sane

beyond a reasonable doubt, excluding the psychiatrist’s testimony). Because it is the

relationship between the mental health professional and the patient that is deserving of

protection under the Section 5944 privilege, I would hold that the harmless error doctrine




                             [J-76-2019] [MO: Mundy, J.] - 4
applies to all violations of the Section 5944 privilege, whether they occur in Act 21

proceedings or in criminal matters. 2 3

       As noted, in applying the harmless error doctrine to the facts presented, I would

hold that the violation of the psychiatrist/psychologist-patient privilege was not harmless,

as I believe that the SOAB assessment was tainted by the consideration of J.M.G.’s

privileged communications. The record establishes that the Commonwealth’s expert,

Robert M. Stein, Ph.D., opined from his review of J.M.G.’s records that J.M.G. satisfied

the criteria for civil commitment under Act 21 because he suffered from a mental

abnormality rendering it likely that he would commit violent sexual acts if released into the

community. Dr. Stein acknowledged that he utilized all of the information that he was

provided, including “statements that [J.M.G.] made while in treatment to various mental

2 Additionally, I do not interpret the United States Supreme Court’s decision in Jaffee v.
Redmond, 518 U.S. 1 (1996), as precluding application of the harmless error doctrine in
cases involving the Section 5944 privilege. See Majority Opinion at 12 (quoting Jaffee,
518 U.S. at 17 (stating that “[m]aking the promise of confidentiality contingent upon a trial
judge’s later evaluation of the relative importance of the patient’s interest in privacy and
the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.”)).
The High Court’s sentiment in this regard was not made in the context of harmless error.
Instead, the issue in Jaffee was whether the federal psychotherapist privilege applied to
confidential communications made to licensed social workers in the course of
psychotherapy. In answering this inquiry in the affirmative, the Supreme Court rejected
the approach of the circuit court, which held that the privilege only applied to social
workers if, “in the interests of justice, the evidentiary need for the disclosure of the
contents of a patient’s counseling sessions outweighs that patient’s privacy interests.”
Jaffee, 518 U.S. at 7, 17-18. Thus, the Supreme Court in Jaffee did not opine on the
propriety of a harmless error analysis after the privilege had been violated but, rather,
rejected a procedure whereby the privilege would not apply in the first instance, absent a
balancing of whether the disclosure outweighed the patient’s privacy interests.
3 I further agree with the Commonwealth that the Superior Court’s decision in In the
interest of T.B., 75 A.3d 485 (Pa. Super. 2013), does not preclude application of the
harmless error doctrine in Act 21 proceedings, as that decision did not directly address
such issue. In T.B., the Superior Court remanded to the trial court for a determination of
whether, in fact, the privilege had been violated. In this case, the Superior Court
concluded that the privilege had been violated; thus, the issue became whether that error
was harmless.


                              [J-76-2019] [MO: Mundy, J.] - 5
health professionals.” N.T., 3/13/2017, at 24. In short, Dr. Stein acknowledged that

J.M.G.’s statements were made for purposes of treatment, that the information was

released to the SOAB without J.M.G.’s consent, and that Dr. Stein relied on such

information in forming his opinion. Id. I agree with Judge Bowes’ dissenting sentiments

below that “the consideration of the privileged statements that [J.M.G.] made for the

purposes of treatment, including reports of auditory hallucinations and various admissions

to sexually deviant behaviors, tainted the [SOAB’s] conclusion that involuntary civil

commitment was warranted pursuant to 42 Pa.C.S. [§] 6403(a)(3).” In the Interest of

J.M.G., 2018 Pa. Super. Unpub. LEXIS 1641, at 26.

      It is for these reasons that I concur in the majority’s mandate to reverse the

judgment of the Superior Court and remand the matter for a new commitment hearing

based upon J.M.G.’s properly redacted records.

      Justice Todd joins this concurring opinion.




                             [J-76-2019] [MO: Mundy, J.] - 6
