New Jersey Section 2C:35-17 – Exception to physician-patient privilege

New Jersey’s Exception to the Physician-Patient Privilege for Controlled Substances

New Jersey has an interesting exception to the physician-patient privilege that attorneys should be aware of. Section 2C:35-17 of New Jersey law states that the physician-patient privilege does not apply when a patient communicates information to a licensed medical practitioner while attempting to illegally obtain or procure controlled dangerous substances (CDS). This article will examine the background, scope, and implications of this exception.

Background of the Physician-Patient Privilege

The physician-patient privilege protects confidential communications between a patient and their doctor from disclosure without the patient’s consent. The purpose is to encourage patients to be completely honest with their doctors so they can receive proper treatment.

This privilege is not absolute though. There are certain exceptions, like reporting gunshot wounds, where public policy favors some disclosure of medical information. New Jersey’s exception for unlawfully obtaining CDS is another carveout from the general physician-patient confidentiality rule.

New Jersey’s Exception for CDS Offenses

New Jersey codified an exception to the physician-patient privilege in its Comprehensive Drug Reform Act of 1986. This law states that confidentiality does not apply when a patient communicates information to a licensed medical practitioner while attempting to illegally obtain or procure CDS.

In these situations, the physician-patient privilege would not prevent law enforcement from subpoenaing the medical records or having the doctor testify against the patient.

Implications and Analysis

Chilling effect? Does this exception discourage people struggling with substance abuse from being honest with their doctors about their medical history and issues? This could negatively impact their treatment.

What communications are protected? The statute says “an effort unlawfully to obtain or procure” CDS, but what exactly does that cover? Just explicit statements about trying to get drugs illegally? Or could it include lies about medical history in order to get a legitimate prescription? The scope is unclear.

Burden on physicians: This exception essentially deputizes doctors to report patients who may be attempting to unlawfully obtain CDS. This interferes with the physician-patient relationship and puts extra investigatory responsibilities on doctors.

Civil liability? If a doctor determines in good faith that a patient made a communication covered by this exception and reports it to law enforcement, are they still protected from civil liability for breaching confidentiality if it turns out their judgement was wrong? The statute does not provide much guidance on this issue.

Evidentiary issues: If a prosecutor tries to admit medical records or physician testimony under this exception at trial, the defense would likely dispute whether the communications were truly “an effort unlawfully to obtain or procure” CDS. This could lead to lengthy evidentiary hearings about the scope of the exception and allowable evidence.

In conclusion, while the policy behind carving out CDS offenses from the physician-patient privilege seems logical, the actual implications and application of Section 2C:35-17 raise some potential issues that attorneys, doctors, and courts will have to grapple with. The legislature may need to provide more clarity on some of these concerns going forward.