Commercial Litigation and Arbitration

Psychotherapist-Patient Privilege Protects Communications with Unlicensed Counselor at Sex Abuse Clinic Who Works under the Supervision of a Licensed Social Worker

From Richardson v. Sexual Assault Spouse Abuse Resource Center, Inc., 2011 U.S. Dist. LEXIS 12822 (D. Md. Feb. 8, 2011):

This Memorandum and Order addresses the claims of privilege that counsel for Defendants Sexual Assault/Spouse Abuse Resource Center, Inc. ("SARC"), Luiza Caiazzo-Nutter, and Stephanie Powers made at the December 7, 2010 hearing with regard to SARC's file for its client, Sherri Richardson (Plaintiff Patrick Richardson's ex-wife)***.

The Supreme Court recognized the psychotherapist-patient privilege in Jaffee v. Redmond, 518 U.S. 1, 15 (1996), in which it held that "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence." ***

Having reviewed the documents in camera, the Court is satisfied that pages 1-7, 12-30, 40-71, and 83-85 contain confidential communications between Ms. Powers and Ms. Richardson and notes taken in the course of diagnosis or treatment. See In re Grand Jury Proceedings, 183 F.3d at 73. However, it is undisputed that Ms. Powers was not a licensed social worker at the time she worked with Ms. Richardson. On that basis, Plaintiff contends that the psychotherapist-patient privilege does not apply to any documents in SARC's file. Pl.'s Ltr. 2.

The Supreme Court extended the privilege to licensed social workers engaged in psychotherapy. Jaffee, 518 U.S. at 15. Yet, the Supreme Court "explicitly left to later courts the task of 'delineat[ing] [the] full contours' of the privilege." Oleszko v. State Comp. Ins. Fund, 243 F.3d 1154, 1157 (9th Cir. 2001) (quoting Jaffee, 518 U.S. at 15). The District of Connecticut stated that the privilege covers a patient's confidential communications with a licensed psychotherapist, psychiatrist, psychologist, or social worker, as well as "notes made during the course of treatment." Jacobs, 258 F.R.D. at 195 (citing Jaffee, 518 U.S. at 15-16). Of import, the Ninth Circuit held that "the psychotherapist-patient privileged recognized in Jaffee extends to unlicensed counselors employed by the SCIF's EAP [the State Compensation Insurance Fund's Employee Assistance Program, which was designed to assist employees in identifying and resolving personal issues, ranging from health, marital, and financial concerns to substance abuse and emotional problems]." Oleszko, 243 F.3d at 1157 (emphasis added). Other courts have reached similar conclusions, id.:

In Greet v. Zagrocki, 1996 WL 724933, *2 (E.D. Pa. 1996), the court held that EAP personnel were covered under the privilege recognized in Jaffee. United States v. Lowe, 948 F. Supp. 97, 99 (D. Mass. 1996), extended the psychotherapist-patient privilege to rape crisis counselors who were neither licensed psychotherapists nor social workers but were under the direct control and supervision of a licensed social worker, nurse, psychiatrist, psychologist, or psychotherapist.

In Lowe, the court observed that, "'[a]s of December 1995, twenty-seven states and the District of Columbia have enacted statutes that protect from disclosure, to differing degrees, confidential communications that arise from the relationship between sexual assault and/or domestic violence victims and their counselors.'" 948 F. Supp. at 99 (quoting U.S. Dep't of Justice, Report to Congress: The Confidentiality of Communications Between Sexual Assault or Domestic Violence Victims & Their Counselors, Findings and Model Legislation, 3 (1995)).

In extending the privilege to unlicensed EAP counselors, the Ninth Circuit considered the Supreme Court's "three main rationales for extending the privilege" to licensed clinical social workers, namely, that (1) "social workers provide a significant amount of mental health treatment"; (2) "social workers often serve the poor and those of modest means who cannot afford a psychiatrist or psychologist, 'but whose counseling sessions serve the same public goals'"; and (3) "the vast majority of states extend a testimonial privilege to licensed social workers." Oleszko, 243 F.3d at 1157 (quoting Jaffee, 518 U.S. at 16). The Ninth Circuit concluded that "[t]he reasons for recognizing a privilege for treatment by psychiatrists or social workers apply equally to EAPs." Id. Here, "Ms. Powers provided services to SARC's client under the direct supervision of Stephanie McAtee, who is and was at the time a licensed counselor." ... Notably, under the supervision of licensed social workers, unlicensed counselors also provide mental health treatment and often serve "the poor and those of modest means who cannot afford a psychiatrist or psychologist," as they are providing the services of a social worker, albeit under supervision. See Oleszko, 243 F.3d at 1155. Further, as noted in Lowe, the majority of states protect confidential communications between victims of sexual assault or domestic violence and their counselors, regardless of the counselors' licensure. See 948 F. Supp. at 99. Therefore, this Court concludes that the same rationale that the Ninth Circuit employed applies to extend the privilege to an unlicensed counselor, such as Ms. Powers, who worked under the supervision of a licensed social worker to make counseling services available. Thus, the psychotherapist-patient privilege applies to Ms. Richardson's confidential communications with Ms. Powers in the course of diagnosis or treatment, i.e., pages 1-7, 12-30, 40-71, and 83-85 of SARC's file. See Jaffee, 518 U.S. at 15.

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