Alaska court: guardian, not child's lawyer, waives therapy privilege

A 10-year-old boy in state custody could not stop his psychotherapy records from reaching his tribe, the Alaska Supreme Court ruled Friday. The power to waive confidentiality belonged to his court-appointed guardian ad litem rather than to his own attorney. He could still argue against release, but the trial judge decided, and the justices upheld the order letting the records go.

The ruling settles who holds the psychotherapist-patient privilege for children under 12 in child-in-need-of-aid cases, a question the court's own rules had left unclear for children between 10 and 12. Justice Pate wrote for the court. Chief Justice Carney did not take part.

The boy, called Tanuk in the opinion, is an enrolled citizen of the Native Village of Hooper Bay. The Office of Children's Services took emergency custody in November 2023 and later placed him at North Star Behavioral Health in Anchorage for residential psychiatric care. The superior court appointed a guardian ad litem to represent his interests and a separate attorney to represent him. Federal law lets a tribe intervene in state proceedings involving one of its children, and Hooper Bay had done so, which made it a party entitled to ask for his records.

In April 2024 the tribe asked the court to make OCS justify the services and placement it had chosen. The records it had received were "almost completely redacted," the tribe said, leaving it unable to make informed decisions about his care. It also questioned whether treatment in Anchorage could work for him at all: his mother, called Jenny in the opinion, speaks primarily Yup'ik, and English was most likely not the boy's first language either.

The guardian ad litem waived the privilege. The boy's attorney objected, arguing his client held a confidentiality interest of his own that should let him block disclosure, and noting in emails that the records would go to what he called "a large, nebulous, unspecified set of persons." Superior Court Judge Nathaniel Peters ordered them released to all parties.

The justices held that a child's objection through counsel does not restore the protection the guardian ad litem gave up. Reading the rule otherwise, the court wrote, "would prioritize the child's subjective desires over the child's objective needs."

A child who objects now carries the burden of showing his interest in confidentiality outweighs the need to disclose. Judges weighing that have to look at what the therapy communications actually contain, at what the child-in-need-of-aid statutes and the privilege are each meant to protect, at whether the information can be had another way, and at whether disclosure would do the child more harm than good. The court found Peters had done that work and that the tribe's need came out ahead.

The records had already gone out, which made the dispute moot. The justices ruled anyway, saying the question would otherwise keep escaping review.