Kerr v. Board of Psychologist Examiners

“Voluntary disclosure of privileged material does not waive the privilege if the disclosure is itself privileged.” State v. Bassine, 188 Or App 228, 233, 71 P3d 72 (2003).

Petitioner, a psychologist at a university counseling center, released patient records to university counsel without patient consent, based on a "litigation hold" letter from a student's attorney to "retain and not purge" the patient file. The Board of Psychological Examiners determined this was a violation of ethical standards and fined Petitioner $2,500, reasoning that the letter was only to 'preserve evidence' and not express consent for release. Petitioner challenged the board’s decision contending that the records released were no longer confidential as the student’s attorney requested records, with student permission, for use during mediation.  However, under ORS 36.220(1)(a), privilege is not waived because “mediation communications are confidential."  The Court found that the patient file was confidential and the student neither consented to its release nor waived privilege. “Voluntary disclosure of privileged material does not waive the privilege if the disclosure is itself privileged.” State v. Bassine, 188 Or App 228, 233, 71 P3d 72 (2003).   Affirmed.