Victory for Parole Revocation Defense: Court Finds Parolee’s Confidentiality Violated
MONDAY, MARCH 14, 2016

Bronx Supreme Court Justice April Newbauer ruled that testimony from a psychiatrist about a parolee’s disruptive behavior violated his medical confidentiality rights and ordered that he receive a new parole hearing.

The case was handled by Staff Attorney Michael Gibbons of the Parole Revocation Defense Unit. Kerry Elgarten, a Staff Attorney in the unit who also worked on the case, said the ruling "recognizes that the sanctity of the psychologist-patient privilege should not lightly be breached, and that Mr. Davis's statements made during treatment should not have been admitted against him at his parole violation hearing."




Testimony Found to Violate Parolee's Confidentiality
Joel Stashenko
New York Law Journal
March 11, 2016

Testimony from a psychiatrist about a parolee's disruptive behavior at a Bronx treatment center violated the man's medical confidentiality rights and led to an improper finding of a parole violation, a state judge has ruled.

Bronx Supreme Court Justice April Newbauer granted a petition for a writ of habeas corpus in People ex rel. Davis v. Warden , 251648-2015, vacating a parole violation warrant against Michael Davis and ordered that he receive a new parole hearing.

Newbauer found the doctor-patient privilege under CPLR §4504 and §4507 was breached at a November 2015 parole hearing in which Dr. Leon Valbrun, director of inpatient psychiatry at the Interfaith Medical Center in the Bronx, testified about threats an agitated Davis made to him and other staffers on Nov. 4, 2015 while receiving treatment.

Valbrun told hearing officer Sharon Burnett how Davis said he would "punch people, and he was going to damage people" because he had been placed on a higher level of staff monitoring. He said he took the threat seriously because, one day earlier, Davis had fractured the jaw of a female patient.

Newbauer noted that medical staff at Interfaith told police about the threatening statements the same day. The Department of Corrections and Community Service held a hearing over Davis' alleged parole violation to establish that probable cause existed to revoke his parole.

At the hearing, Davis' counsel objected to Valbrun's testimony, saying it violated patient-physician confidentiality under the CPLR, which states that "confidential relations and communications" between a psychologist and a client are placed on the same level of privilege as those between an attorney and a client.

Burnett replied, according to Newbauer's ruling, "We're going to proceed. You can always file a writ if you think that Mr. Davis' rights have been violated at this time."

Newbauer, ruling on the writ filed by Davis' counsel, concluded that Valbrun's testimony was privileged. She ordered that Davis be given a new hearing once his mental competency is evaluated under a CPL §730 hearing.

Physician-patient privilege is to be given a "broad and liberal construction" Newbauer wrote, citing cases such as People v. Rivera, 25 NY3d 256 (2015), and People v. Wilkins, 290 NY2d 758 (1985).

"The privilege encourages unrestrained communications between a patient and his medical provider so that the patient may obtain diagnosis and treatment without fear of embarrassment over potential disclosure," Newbauer said. "It also encourages physicians to be forthright in recording their patient's confidential information; and it protects patients' reasonable privacy expectations against disclosure."

The judge said an exception is written into Mental Health Law §33.13(c)(1) allowing a court to order the release of confidential medical information if the "interests of justice significantly outweigh the need for confidentiality."

But she said no such court had intervened to conduct an interests-of-justice analysis about Valbrun's testimony, and Davis did not waive his confidentiality rights.

"Since Davis' statements are subject to the psychiatrist-patient privilege and without any waiver or exception, their admission in evidence through the testimony of Dr. Valbrun violated CPLR §§4504(a) and 4507," she wrote.

The judge added that staff members at Interfaith were "within their rights" to call police and inform them of the threats Davis made, but that "no exception to the privilege exists to permit confidential information to be disclosed ... for the purpose of establishing probable cause against Davis."

Attorney Michael Gibbons of the Legal Aid Society represented Davis.

Kerry Elgarten, an attorney in the Legal Aid's Parole Revocation Defense Unit who also worked on the case, said the ruling "recognizes that the sanctity of the psychologist-patient privilege should not lightly be breached, and that Mr. Davis's statements made during treatment should not have been admitted against him at his parole violation hearing."

Assistant Attorney General David Cheng defended the Department of Corrections and Community Service.