Fitness For Duty Evaluations May Not Be Privileged

Oda Poole and Stan North were police officers employed with the Rockford, Illinois Police Department on August 24, 2009 when they fatally shot Mark Barmore. Barmore’s estate sued Poole, North and the City, claiming that Poole and North used excessive force. During depositions, Poole and North refused to answer certain questions about their conversations with mental health professionals based on the psychotherapist-patient privilege. The City also refused to provide “fitness for duty” evaluations for Poole and North.

A federal court sided with the officers on their conversations with mental health professionals, but with the estate on the fitness for duty evaluations. On Poole and North’s conversations with mental health professionals, the Court found those conversations were clearly within the scope of the doctor-patient privilege, and need not be disclosed.

Moving on to the fitness evaluation, the Court described the “dispositive question” as “whether a fitness evaluation such as those conducted with North and Poole involved the diagnosis and treatment of the officers for the purpose of restoring their mental health.” The Court found that the evaluation “clearly was not for the purpose of treatment.” The Court found it a closer question on the issue of diagnosis, ultimately explaining that that statements made in the course of diagnosis were only privileged if they were made “in conjunction with the concept of treatment.”

The Court concluded that a psychological evaluation “related to the ability to perform the required functions of a police officer” was not within the meaning of “diagnosis related to treatment.” Because treatment was not the purpose of either officer’s fitness-for-duty evaluation, the Court held that the privilege was not applicable to the evaluations.

Barmore v. City of Rockford, 2012 WL 3779045 (N.D. Ill. 2012).