Tucson shooter's prison records to be released

When are doctor-patient communications not privileged and confidential? Apparently when the government requests them as part of determining competence to stand trial. David Schwartz of Reuters reports:

District Court Judge Larry Burns, in a ruling made public on Thursday, said there is no reason to prohibit the U.S. Bureau of Prisons from releasing to law enforcement and federal prosecutors psychological records and other information about the 22-year-old college dropout.

Loughner’s lawyers said such a release would violate the federal government’s own guidelines and Loughner’s constitutional right to protection from self-incrimination and due process.

“The Court finds that neither the psychotherapist-patient privilege nor the Fifth and Sixth Amendments bar the disclosure of this information to the Government,” Burns wrote in rejecting that argument.

In related coverage, Jennifer Epstein of Politico reports:

Staff from the Bureau of Prisons have met with Loughner on many occasions and recorded his “demeanor, affect, behavior, incoming and outgoing mail, verbal and non-verbal communications, and confidential information about visits with his legal team,” his lawyers said in their filing.

The lawyers had argued that providing private information from Loughner to the prosecution would violate his rights as a prisoner, as well as psychotherapist-patient privilege.

Behavioral observations in a prison are one thing, but therapist’s notes from sessions are another. Then, too, requesting pre-shooting mental health records, when Lochner may have had a clear expectation of confidentiality and privilege is yet something else.

So does the prosecution make a compelling case that they need his medical records as part of their determination/evaluation as to whether he is competent to stand trial? Ladd Egan provides some background and justification for the request.

I find this whole thing troubling. It seems to me that if the defense wants to introduce those records, then they need to make them available to the prosecution. But if the defense doesn’t intend to use them, should the prosecution still be able to access them? What do you think?

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