In Re Alethea W.

MARVIN H. SMITH, Judge, Retired, Specially Assigned. The District Court of Maryland for Montgomery County, sitting as the juvenile court, adjudicated Alethea W., the daughter of appellant Linda W., to be a Child in Need of Assistance. The only issue in this appeal from that adjudication is whether the trial court erred in admitting testimony and documentary evidence regarding two competency examinations of Linda W. that were performed at Crownsville Hospital Center pursuant to court orders in two unrelated criminal cases. We shall hold that the court did not err.

FACTS Alethea W. was born on July 22, 1998. Five days later, during the evening of July 27, Linda W. called the Montgomery County Department of Health and Human Services Crisis Center in an effort to secure shelter for herself and Alethea. ⁶³⁸ Nikia Miller, a therapist at the Crisis Center, arranged for a cab to bring Ms. W. and the baby to the Center. Once Ms. W. and Alethea arrived at the Center, Ms. Miller observed that Ms. W. “appeared psychotic” and “appeared to be responding to some internal stimuli.” Ms. Miller called the Department’s Child Protective Services office, and representatives of that office, including social worker Teresa Kingsfield, arrived at the Crisis Center to assist her. Ms. Miller prepared an emergency petition to have Ms. W. undergo a psychiatric evaluation at Shady Grove Hospital. 1 Ms. Miller then called the police, who served the petition on Ms. W. while she waited at the Crisis Center.

The police transported Ms. W. to the hospital. Teresa Kingsfield, meanwhile, prepared an emergency petition for shelter care for Alethea. The petition was filed in the juvenile court and granted the next day. The court directed that Alethea remain in the care and custody of the Montgomery County Department of Health and Human Services and that she be placed with her maternal great-aunt, Arrah O. On August 12, 1998, Ms. Kingsfield filed a second petition, this time asking that Alethea be declared a Child in Need of Assistance.

A hearing was held over three days — November 12, 1998, January 5, 1999, and February 2, 1999. In order to prove that Alethea was a Child in Need of Assistance, the County called Ms. Miller, Ms. Kingsfield, social worker Barbara Geiger, and Arrah O. to testify. It also called Dr. Muhammad Ajanah, Associate Director of Forensic Psychiatry at Crownsville Hospital Center. Dr. Ajanah’s testimony and two letters admitted through Dr. Ajanah are the subject of this appeal.

Dr. Ajanah heads a forensic team at Crownsville. He told the court that Linda W. had twice been evaluated by the team to determine her competency to stand trial in criminal cases unrelated to the instant case. The District Court of Maryland ⁶³⁹ for Prince George’s County first sent Ms. W. to Crownsville for a competency evaluation on October 22, 1996. Ms. W. refused to cooperate with the forensic team, however.

Dr. Ajanah explained that, because Ms. W. would not submit to an evaluation, the team was forced to conclude preliminarily that she would not be able to participate in the criminal trial and that she was therefore incompetent to stand trial. As a result, Ms. W. was involuntarily committed to Crownsville on December 30, 1996. She was then forced to take medications which rendered her more cooperative, and the team was able to begin an evaluation process which concluded in February of 1997. The team then found Ms. W. competent to stand trial, and she remained at Crownsville until her trial on March 18, 1997.

Ms. W. was next admitted to Crownsville for a competency evaluation on October 7, 1998, while the petition now in issue was pending. Again, the team initially found Ms. W. to be incompetent to stand trial. Because Ms. W. was more cooperative this time and voluntarily took medications, she did not have to be involuntarily committed. The team was able to complete a full evaluation, during which it found Ms. W. competent to stand trial, by November 4,1998.

Dr. Ajanah testified that he informed Ms. W. both times she was sent to Crownsville that anything she told the members of the team would not be “confidential.” He further testified that the evaluation processes did not end shortly after Ms. W.’s arrivals at Crownsville but continued throughout her stays. Counsel for Ms. W. conceded that, under certain circumstances, communications between an individual and a psychiatrist or psychologist elicited pursuant to a court-ordered examination may not be privileged. She nevertheless argued that Ms. W.’s communications with Dr. Ajanah and the other members of the forensic team were privileged. The trial court rejected counsel’s arguments, and Dr. Ajanah was permitted to testify in detail about the conclusions reached by the forensic team during both of Ms. W.’s hospitalizations at Crownsville.

In addition, the two letters setting forth the ⁶⁴⁰ team’s views at the start and end of Ms. W.’s first hospitalization were admitted into evidence. Dr. Ajanah explained that, during Ms. W.’s first hospitalization at Crownsville, the team diagnosed her as having a psychotic disorder, or psychosis, but could not reach a more specific diagnosis. The team also determined that Ms. W. abused alcohol and had a personality disorder. During Ms. W.’s second hospitalization, when she was more cooperative, the team was able to determine that she had a schizoaffective disorder of the bipolar type.

Dr. Ajanah opined that, unless a person with such a disorder was undergoing treatment, she would be “hard pressed” to care for herself and could not care for another person. On cross-examination, Dr. Ajanah acknowledged that a person with such a disorder could care for a baby if the person were medicated and receiving therapy. At the close of the hearing, the court adjudicated Alethea to be a Child in Need of Assistance. It committed her to the Montgomery County Department of Health and Human Services for continued placement with Arrah O. DISCUSSION Section 9-109 of the Courts article addresses the privilege for communications between a patient and his or her psychiatrist or psychologist.

It provides, in pertinent part: (a) Definitions. — ... (3) “Patient” means a person who communicates or receives services regarding the diagnosis or treatment of his mental or emotional disorder from a psychiatrist, licensed psychologist, or any other person participating directly or vitally with either in rendering those services in consultation with or under direct supervision of a psychiatrist or psychologist. (b) Privilege generally. — Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a pa ⁶⁴¹ tient or his authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient’s mental or emotional disorder. (d) Exclusion of privilege. — There is no privilege if: (2) A judge finds that the patient, after being informed there will be no privilege, makes communications in the course of an examination ordered by the court and the issue at trial involves his mental or emotional disorder[.] Md.Code (1974, 1998 Repl.Vol.), § 9-109 of the Cts. & Jud.

Proc. art. The purpose of the privilege is “ ‘to aid in the effective treatment of the [patient] by encouraging the patient to disclose information fully and freely without fear of public disclosure.’ ” Goldsmith v. State, 387 Md. 112, 150 , 651 A.2d 866, 885 (1995) (dissenting opinion) (citation omitted). The privilege created by § 9-109 applies to records based on communications between patients and their psychiatrists or psychologists relating to diagnosis or treatment, as well as to verbal communications. See id. at 123, 651 A.2d 866 .

Section 9-109(d)(2) makes clear that a judge is empowered to order mental examinations and evaluations in the course of a trial. Provided the individual is informed that “there will be no privilege, makes communications in the course of an examination ordered by the court[,] and the issue at trial involves his mental or emotional disorder,” communications between the individual and the psychiatrist or psychologist are not subject to the privilege. § 9-109(d)(2). See In Re Matthew R., 113 Md.App. 701 , 714 n. 3, 688 A.2d 955 , 960 n. 3 (1997). Under such circumstances, the professional’s services are performed for the benefit of the court rather than the individual; any ⁶⁴² benefit to the individual is incidental.

The purpose of the privilege — to aid in effective treatment — is not served. See generally Arizona v. Evans, 104 Ariz. 484, 435 , 454 P.2d 976, 977 (1969) (evaluation ordered by court to determine competency to stand trial); M. v. Pennsylvania State Board of Medicine, 725 A.2d 1266, 1268-69 (Pa.Commw.Ct.1999) (evaluation ordered upon request of defendant in civil case). On appeal to this Court, Linda W. reiterates the arguments made by her counsel below. She argues, in essence, that (i) Dr. Ajanah’s advisements that her communications would not be confidential were not sufficient to inform her that her communications would be excluded from the privilege under § 9 — 109(d)(2) and, in any event, because the advisements were given at a time when she was “incompetent” she could not have been expected to understand them; (ii) Dr. Ajanah’s testimony referred to communications that occurred after the forensic team had completed the competency evaluations, at points when Ms. W. was receiving treatment at Crownsville 2 ; and (iii) even if § 9-109(d)(2) applied to exclude the communications from the privilege for the purposes of the criminal proceedings for which the competency evaluations were ordered, they were not excluded from the privilege for the purpose of the Child in Need of Assistance Proceeding.

(i) There is no dispute that Dr. Ajanah advised Ms. W., at the start of each hospitalization, that her communications would not be confidential. By common parlance, of course, a communication is confidential if it is “meant to be kept secret.” Black’s Law Dictionary 294 (7th ed.1999). Ms. W. contends that Dr. Ajanah’s advisements were not sufficient to exclude the communications from the privilege under § 9-109(d)(2) because they did not expressly state that there would be no privilege. This argument ignores that the privilege with which we are concerned is the privilege of confidentiality.

See ⁶⁴³ generally Hamilton v. Verdow, 287 Md. 544, 550 , 414 A.2d 914, 919 (1980); Kovacs v. Kovacs, 98 Md.App. 289, 309 , 633 A.2d 425, 435 (1993), cert. denied, 334 Md. 211 , 638 A.2d 753 (1994); and Shaw v. Glickman, 45 Md.App. 718, 726 , 415 A.2d 625, 630 , cert. denied, 288 Md. 742 (1980) (each referring to the privilege created by § 9-109 as the “privilege of confidentiality”). Section 9-109(b) implicitly provides that “communications relating to diagnosis and treatment of the patient’s mental or emotional disorder” are confidential; the