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No records for you!

It’s part of New England lore, the murderous woman.

In Massachusetts, the lore begins with allegations that there were murdering witches in Salem,1 and continues at least until, according to popular lore but not according to a jury verdict,

Lizzie Borden took an ax
And gave her mother forty whacks.
When she saw what she had done,
She gave her father forty-one.2

In New Hampshire, it’s Sarah Simpson and Penelope Kenney who were the first to be hanged there.3

Amy-Archer-GilliganAnd in Connecticut, it’s Amy Archer Gilligan — the serial killer who inspired the play and 1944 movie “Arsenic and Old Lace.”

Whose records, the Connecticut Supreme Court ruled yesterday, will remain sealed, because the records were created while she was a patient at what’s now called Connecticut Valley Hospital — a psychiatric hospital.

No matter that Amy Archer Gilligan has been dead since 1962.

No matter that her only child has been dead since 1968.

No matter what the records say.

No matter what kinds of records they are. Even administrative, billing, and dental records are to remain sealed.

All because of the kind of patient Amy Archer Gilligan was — a psychiatric patient.

The five-member majority on the Court, in an opinion written by Justice Dennis G. Eveleigh, focused almost exclusively on the fact that, under Connecticut law, all communications and records related to psychiatric treatment are confidential, not to be disclosed. So, the majority concluded, everything that happened to Gilligan as a pschiatric patient was confidential “because all of the documents at issue were created during care for a patient at an inpatient mental health facility, and that medical diagnosis and treatment are part of psychiatric treatment and diagnosis at an inpatient mental health facility.”4 It concluded that even “medical and dental records that are created by an inpatient mental health facility during the treatment of a patient are exempt from disclosure.”5

In a much more nuanced opinion agreeing in part with leaving some records sealed because they really did relate to psychiatric treatment, but that would have allowed disclosure of other records that didn’t really relate to treatment, Justice Andrew J. McDonald noted the tension between the desire for confidentiality in psychiatric treatment and the equally powerful public right to access to information. “Rather than charting a path that balances and accommodates both of these statutory priorities,” he wrote, “the majority construes one to vanquish the other and, in the process, deviates significantly from critical principles at the core of open government.”6

The majority’s approach, the Justice wrote, painted with too broad a brush:

Rather than looking to the contents of the documents to determine whether they meet the statutory requirements for applying the privilege, the majority … does not recognize that many of the documents are not medical and dental records at all, but are merely administrative records and correspondence having nothing to do with Gilligan’s psychiatric treatment. Moreover, the privilege does not protect every document that finds its way into an inpatient’s file, nor does it protect every communication made at a treatment facility. … The contents of the communications and records dictate whether they are privileged, not the fact that the communications and records happen to reside in a particular patient file.7

It’s long been said that hard cases make bad law. Nobody disagrees with the notion that psychiatric patients must be free to disclose anything and everything in the course of their treatment if that treatment is to have any hope of succeeding.

The precedent set by this decision in this hard case makes for bad law — bad in Connecticut, bad anywhere. When the reasons for sealing records no longer exist, keeping them sealed just because is a bad decision.

It may well be that, in this case at this time, the public interest in the records was due to mere curiosity. The action was brought by Ron Robillard, an East Hartford author writing a book about Gilligan, and not by a descendant or family member interested in family medical history.

But the rule will be followed even when the case does focus on a descendant or family member interested in family medical history.

When it comes to the public interest in access to records, well, the Connecticut Supreme Court took an ax…


SOURCES

Image: Wikimedia Commons

  1. Jess Blumberg, “A Brief History of the Salem Witch Trials,” Smithsonian.com, posted 23 Oct 2007 ( : accessed 14 Sep 2015).
  2. Wikipedia (http://www.wikipedia.com), “Lizzie Borden,” rev. 8 Sep 2015.
  3. American female hangings 1632 to 1937,” Capital Punishment U.K. (http://www.capitalpunishmentuk.org/ : accessed 14 Sep 2015).
  4. Freedom of Information Officer, Dept. of Mental Health & Addiction Services v. Freedom of Information Commission, No. SC 19371(Conn. Supreme Court, 14 September 2015), majority slip opinion at 6.
  5. Ibid., majority slip op. at 10.
  6. Freedom of Information Officer, Dept. of Mental Health & Addiction Services v. Freedom of Information Commission, No. SC 19371(Conn. Supreme Court, 14 September 2015), concurring and dissenting slip opinion at 1.
  7. Ibid., conc. & diss. slip op. at 5.
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