On appeal from a final decision of the Commissioner, New Jersey Department of Corrections.
O'Brien, Havey and Stern. The opinion of the court was delivered by O'Brien, J.A.D.
[224 NJSuper Page 254] The Office of Inmate Advocacy, as authorized by N.J.S.A. 52:27E-1 et seq., appeals from a portion of regulations adopted by the Department of Corrections (DOC) concerning psychological
services provided for prison inmates.*fn1 In response to our decision in Zeltner v. N.J. Dept. of Corrections, 201 N.J. Super. 195, 200 (App.Div.), certif. den. 102 N.J. 299 (1985), administrative standard 520 was proposed for adoption as a rule pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., as N.J.A.C. 10A:16-4.4. See 18 N.J.R. 1667, published on August 18, 1986. By letter of August 30, 1986, Kevin F. Fitzgerald, an inmate, filed an exception to proposed N.J.A.C. 10A:16-4.4(c) 2 through 5. The New Jersey Psychological Association (NJPA) likewise filed an exception. Pursuant to N.J.S.A. 52:14B-4, a hearing was conducted on September 9, 1986. Subsequent to the hearing, N.J.A.C. 10A:16-4.4 was adopted on March 6, 1987 by the commissioner effective April 6, 1987. See 19 N.J.R. 541. The Public Advocate filed his appeal to portions of N.J.A.C. 10A:16-4.4 pursuant to R. 2:2-3(a)(2). By order of January 11, 1988, we authorized NJPA to file a brief amicus curiae. At oral argument DOC advised us that it did not consider it necessary to respond to the amicus brief.
N.J.A.C. 10A:16-4.4, portions of which are objected to by Fitzgerald, the Public Advocate and the NJPA, reads as follows:
(a) Confidential relations between and among clinical practitioners and individuals or groups in the course of practice, are privileged communications, not to be disclosed to any person.
(b) Privileged communications are subject to certain exceptions where it is found or believed that disclosure is more important to the present and future interests of substantial justice or safety of persons, than protection from injury to the clinical practitioner/patient relationship or to the inmate or others whom disclosure is likely to harm.
(c) The following exceptions to privileged communications are applicable only in situations which present a clear and imminent danger to the inmate or others.
1. Where the inmate discloses planned action which involves a clear and substantial risk of imminent serious injury, disease or death to the inmate or another identifiable person;
2. Where an escape plan is disclosed to the clinical practitioner;
3. Where drug trafficking for profit or illicit influence on others, involving Controlled Dangerous Substances (CDS) or drug paraphernalia which may result in:
i. Injury (for example, transmission of disease by sharing of hypodermic needles, etc.);
iii. Other interference with the orderly operation of the correctional facility is disclosed.
4. Where the inmate discloses suicide plans or other life threatening behavior; and/or
5. Where the inmate discloses a past, previously unreported murder, aggravated sexual assault or arson which resulted in a death. For the purpose of this Subsection, aggravated sexual assault shall mean those offenses set forth in N.J.S.A. 2C:14-2(a). Past crimes shall be disclosed only where circumstances present a reasonably foreseeable danger in the present or future due to the nature of the past crime.
The rule then sets forth the procedure to be followed by the clinical practitioner receiving such information. The portions of the rule to which Fitzgerald and the Public Advocate object are N.J.A.C. 10A:16-4.4(b) and (c) 2, 3, 4*fn2 and 5. NJPA does not object to (c) 2 since "an escape attempt will almost always endanger the inmate and/or others," nor does it object to (c)4.
The confidential relations and communications between and among a licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between ...