Coast Guard Court of Appeals Clarifies the Scope of the Psychotherapist-Patient Privilege

Military Rule of Evidence 513(a) provides that

Does this psychotherapist-patient privilege prevent the disclosure of the dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used? That was the question of first impression addressed by the United States Coast Guard Court of Appeals in H.V. v. Kitchen, 75 M.J. 717 (2016).

In United States v. Randolph, a defendant in court-martial proceedings, moved to compel production of the alleged victim’s mental health records for in camera review notwithstanding the psychotherapist-patient privilege claimed by the alleged victim. At the hearing on the motion, “the military judge ruled that M.R.E. 513 did ‘not prevent the disclosure of dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used.'”

In response, the alleged victim sought extraordinary relief in the nature of a writ of mandamus requiring the military judge to comply with Military Rule of Evidence 513(a). In response, the court noted that

We are not aware of any federal appellate court decisions on the issue at hand. The published cases brought to our attention that are directly on point amount to a single federal district court case.

That case was Stark v. Hartt Transportation Systems, Inc., 937 F.Supp.2d 88, 92 (D. Me. 2013), in which the court held that

A person’s mental health diagnoses and the nature of his or her treatment inherently reveal something of the private, sensitive concerns that led him or her to seek treatment and necessarily reflect, at least in part, his or her confidential communications to the psychotherapist. As the N.G. court noted in rejecting an argument similar to the one advanced by the defendant in this case, “The privilege would essentially be gutted if a psychotherapist could be ordered to testify about a person’s diagnosis or treatment, over the person’s objection, so long as the psychotherapist refrained from expressly describing or referring to the content of any confidential communications.”…Construing the privilege in this “narrow fashion…would defeat the societal interests protected by the privilege.”

The military court then interpreted Stark as follows:

Stark observes that the privilege does not extend to information regarding the occurrence of treatment, including whether a psychotherapist treated the privilege holder, the dates of treatment, and the length of treatment on each date….

Stark‘s statement that diagnoses and the nature of treatment necessarily reflect, in part, the patient’s confidential communications to the psychotherapist is undeniable. Most diagnoses of mental disorders rely extensively on what the patient has communicated to the psychotherapist. Contrary to the dissent’s assertion that diagnosis and treatments are matters of fact that exist independent of any communications between the patient and the psychotherapist, diagnosis does not have an independent existence.

The court then agreed with this reasoning, concluding

that the military judge erred as a matter of law in ordering release to the defense of Petitioner’s records indicating a psychiatric diagnosis, the date of such diagnosis, any medications prescribed, the duration prescribed medications were to be taken, type of therapies used, and the resolution of the diagnosed psychiatric condition. However, release of dates of treatment and the identity of the provider and time taken on each date are not privileged.

The dissent disagreed, responding that

A diagnosis, prescribed medications, and other treatments are matters of fact that exist independent of any communications between the patient and the psychotherapist. The psychotherapist can decide on a diagnosis by comparing the patient’s condition to criteria listed in the Diagnostic and Statistical Manual of Mental Disorders, and the psychotherapist can testify to a diagnosis without referring to confidential communications. While the psychotherapist may discuss diagnosis, medications, and other treatments with the patient, that does not mean that they exist only as a communication between the patient and the psychotherapist. The facts that there was a diagnosis, that medications were prescribed, or that other treatments were given, exist regardless of whether or to what extent they were discussed with the patient.

But it was the majority that took the day, and I agree with their conclusion. The goal of the privilege is to foster communications between patient and psychotherapist so that there can be efficacious treatment. If the psychotherapist’s diagnoses and therapies could be disclosed, that would make the patient think twice about communicating with her psychotherapist. And that would cut against the purpose of the privilege.

-CM