Circuit Split: Is There a “Dangerous Patient” Exception to Psychotherapist-Patient Privilege? — 8th Circuit Says No — Statement to Emergency Room Admitting Physician’s Assistant Not Privileged — Elements of Privilege

United States v. Ghane, 2012 U.S. App. LEXIS 4990 (8th Cir. Mar. 9, 2012):

In the normal course, "[w]e review the district court's admission of testimony for an abuse of discretion." United States v. Bad Wound, 203 F.3d 1072, 1075 (8th Cir. 2000). However, because this case encounters the delineation of a federal testimonial privilege, which includes the decision, or not, to adopt a "dangerous patient" exception to the psychotherapist-patient privilege (a matter of first impression in this circuit), our review of the district court's analysis is de novo. "[T]he scope [or contours] of a privilege and the decision whether to establish a new privilege[, or to adopt an exception thereto,] are mixed questions of fact [(i.e, the applicability of a privilege)] and law [(i.e., the scope of a privilege)] which we review de novo."***

1. Privilege Standard

*** Federal privilege law, as conceived by Rule 501, is determined by "the principles of common law as they may be interpreted by the courts of the United States in the light of reason and experience." Fed. R. Evid. 501. "The beginning of any analysis under Rule 501 is the principle that 'the public has a right to every man's evidence.'" Carman, 114 F.3d at 793 (quoting Hardwicke, L.C.J., quoted in 12 Cobbett's Parliamentary History, 675, 693 (1742)). Thus, in the development of testimonial privileges, courts "start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule." Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (quotations omitted). Accordingly, "these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." United States v. Nixon, 418 U.S. 683, 710 (1974).

The Supreme Court has recognized one such exception from "every man's evidence," the psychotherapist-patient privilege. In Jaffee, the Court 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." Jaffee, 518 U.S. at 15. As relevant here, a testimonial "privilege protecting confidential communications between a psychotherapist and her patient 'promotes sufficiently important interests to outweigh the need for probative evidence.'" Id. at 9-10 (quoting Trammel v. United States, 445 U.S. 40, 51 (1980)). That is, discussions in the course of therapy likely facilitate an atmosphere of confidence and trust conducive to meaningful treatment. Id. at 10. ***

In Jaffee, the Supreme Court extended the psychotherapist-patient privilege to licensed social workers in addition to licensed psychiatrists and psychologists***.

2. Physician's Assistant Gluhovsky

During Ghane's ER intake interview and examination with Gluhovsky, Ghane told Gluhovsky that he felt suicidal. Upon further questioning from Gluhovsky regarding Ghane's plans and means to act on these suicidal thoughts (a routine question if the subject arises during such an interview) Ghane informed Gluhovsky that he had cyanide in his apartment, which Ghane intended to use to commit suicide should Ghane eventually decide to do so. Ghane further indicated that he would not be willing to voluntarily give up this cyanide to anyone because he might want to use it later. Ghane claims that these statements fall within the psychotherapist-patient privilege and thus Gluhovsky should not have been allowed to testify at Ghane's criminal trial. ***

Referencing with authority the 1972 rules proposed by the Judicial Conference Advisory Committee, which recommended that Congress recognize a psychotherapist-patient privilege as part of the Rules of Evidence, Ghane argues that the psychotherapist-patient privilege extends not only to direct communications with psychotherapists, but also to any communications made to third parties who are "reasonably necessary for the transmission of the communication" to the psychotherapist, and to communications made to "those present to further the interest of the patient in the consultation, examination, or interview." 56 F.R.D. 183, 240-44 (1972) (hereinafter "Supreme Court Standard 504"). Here, Ghane claims, Gluhovsky was just the sort of person contemplated by the Supreme Court Standard.

We acknowledge that the Supreme Court Standard 504 is "a useful starting place" for an examination of this privilege, as the Supreme Court, and this court, too, has looked to these proposed standards to inform the definition of the federal common law of privileges, despite the failure of Congress to enact such a detailed article on privileges. In re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994); see also Jaffee, 518 U.S. at 10-11. As recommended by the Supreme Court in 1972, the Supreme Court Standard 504 provided that:

A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient's family.

Supreme Court Standard 504(a)(3).

Despite the definition set forth in Supreme Court Standard 504, however, Ghane's statements to Gluhovsky are not subject to the privilege. Gluhovsky was not a licensed psychotherapist in the course of diagnosis or treatment despite Ghane's arguments to the contrary. The psychotherapist-patient privilege contemplates treatment. It does not encompass "care" provided by an ER physician's assistant whose job is to assess incoming patients and conduct intake interviews and evaluations. Ghane sought admission, not treatment, from Gluhovsky.

In Jaffee, the Court contrasts treatment by a physician for physical ailments that can be done on the basis of physical exams and diagnostic tests, with effective psychotherapy, which depends upon an atmosphere of trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. *** Gluhovsky, on the other hand, in no way provided mental health treatment to Ghane, but merely completed an intake form as part of the hospital's protocol for all incoming patients, wherein future placement is determined for treatment. These communications are not subject to the privilege under Jaffee.

In its general definition of the privilege, the Supreme Court Standard further provides:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis or treatment of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.

Supreme Court Standard 504(b). Adding texture to the analysis, Supreme Court Standard 504(b) thus also highlights that the patient's purpose in communicating with his psychotherapist (or other such licensed therapist) factors into our analysis. Noted above, Ghane spoke to Gluhovsky for purposes of hospital admission, not treatment. Gluhovsky was clear in his testimony that he did not provide any therapy, diagnosis or treatment to Ghane during their brief encounter.

Applying Jaffee, the Ninth Circuit articulates the burden placed on those wishing to invoke the benefit of the privilege, requiring a showing that "1) [the individual on the receiving end of the communications at issue] is a licensed psychotherapist, 2) [the defendant's] communications . . . were confidential, and 3) the communications were made during the course of diagnosis or treatment." United States v. Romo, 413 F.3d 1044, 1047 (9th Cir. 2005). In Romo, even though an inmate's confession that he had written a threatening letter to the President was made to a licensed professional counselor who had previously provided mental health treatment during voluntary counseling sessions with the inmate, the court held that the psychotherapist-patient privilege did not apply to the counselor's later testimony at trial because at the time the defendant made the confession, the private meeting between the two did not involve therapy, diagnosis or treatment. Id. at 1048. So, depending upon the circumstances, it is cognizable that even certain communications to one's own licensed therapist are not covered by the privilege.

Claiming that Gluhovsky was somehow integral or necessary to Ghane's psychiatric treatment stretches the limits of the privilege. Gluhovsky certainly facilitated Ghane's placement as a psychiatric patient, but that is the extent of Gluhovsky's involvement. Gluhovsky did not work for the psychiatric unit at the hospital, but rather answered to the demands of his own supervisor, the attending ER physician. ***

3. Dr. Houghton

When Dr. Houghton met with Ghane on February 5, 2003, the day after Ghane's admission to OPRMC, Ghane threatened unnamed government employees in the Corps of Engineers and noted that he had "access to chemicals." Ghane made these statements to Dr. Houghton in a highly charged emotional state; Ghane's demeanor that day was different, more irritated and hostile, than it had been on all of Dr. Houghton's multiple, previous encounters with Ghane. As a result of this perceived threat, Dr. Houghton sought the advice from the hospital's risk management and ultimately obtained Ghane's consent to notify appropriate legal authorities of the threats.

Both parties astutely agree that the statements made by Ghane to Dr. Houghton fall directly within the psychotherapist-patient privilege previously discussed. Dr. Houghton was Ghane's treating psychiatrist and Ghane's statements were made to Dr. Houghton in the course of treatment. ***

In Jaffee, the Court observed in a footnote: "[W]e do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist." Jaffee, 518 U.S. at 18 n.19. Arising from this dictum is a "dangerous patient" exception to the psychotherapist-patient privilege discussed, but often rejected, by circuit courts. United States v. Auster, 517 F.3d 312, 315-16 (5th Cir. 2008) (recognizing that an exception to the privilege exists and can be useful in a criminal trial, but refusing to apply it on the facts of the case because the patient knew his communication to his therapist was not confidential); United States v. Chase, 340 F.3d 978, 992 (9th Cir. 2003) (en banc) (holding that even if a patient knows that a threat is not made in confidence, any statements made to the therapist are privileged in a federal trial); Hayes, 227 F.3d at 583-87 (analyzing and ultimately rejecting the dangerous patient exception to the federal psychotherapist-patient testimonial privilege); United States v. Glass, 133 F.3d 1356, 1360 (10th Cir. 1998) (restricting the application of the exception to situations where the threat was serious when it was uttered and its disclosure was the only means of averting harm).

Ghane argues that the "dangerous patient" exception has no place in federal criminal law, citing the reasoning of the Sixth and Ninth circuits, which have rejected its application. We agree with our sister circuits that have rejected this exception and decline to interpret the dictum in Jaffee as establishing a precedentially binding "dangerous patient" exception to the federal psychotherapist-patient testimonial privilege.

In Hayes, the Sixth Circuit adeptly analyzed the dangers associated with the adoption of such an exception. We adopt Hayes' reasoning. At the outset, we, too, reject the Tenth Circuit's application of the "dangerous patient" exception, which ties the standard of care exercised by a treating psychotherapist in complying with a state's "duty to protect" requirement, with the applicability of the psychotherapist-patient privilege in criminal proceedings. Glass, 133 F.3d at 1360 (determining that the alleged "exception" to the Jaffee privilege is applicable only where the threat was serious when made and disclosure is literally the only means of averting harm). ***

Second, adopting a "dangerous patient" exception to the psychotherapist-patient privilege would necessarily have a deleterious effect on the "confidence and trust" the Supreme Court held is implicit in the confidential relationship between the therapist and a patient — an interest the Court also held serves public ends "by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem." Jaffee, 518 U.S. at 10, 11; Hayes, 227 F.3d at 584-85. The "dangerous patient" exception to the federal testimonial privilege is quite different from a therapist's "duty to protect," which is already in place.

While early advice to the patient that, in the event of the disclosure of a serious threat of harm to an indentifiable victim, the therapist will have a duty to protect the intended victim, may have a marginal effect on a patient's candor in therapy sessions, an additional warning that the patient's statements may be used against him in a subsequent criminal prosecution would certainly chill and very likely terminate open dialogue.

Hayes, 227 F.3d at 584-85.

We likewise recognize, as did the Sixth Circuit in Hayes, that there are times when a therapist can testify at a hearing and it will not have the above-mentioned deleterious effect on the confidence the therapist shares with his patient. Id. Having a therapist testify at his patient's own involuntary commitment proceedings is a different matter altogether. Testimony such as this comports with the already-existent "duty to protect" the patient or identifiable third parties placed on therapists generally. And, once committed, the patient's mental health care continues, quite possibly with the very same mental health professional that recommended the involuntary commitment.

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