Court of Appeals Finds that Psychotherapist-Patient Privilege Does Not Extend to Diagnoses or Treatment Plans

The military justice system, like state and federal justice systems, contains rules of privilege. These rules keep certain evidence from being introduced in a court proceeding, even if the evidence would be relevant at trial. These rules of privilege exist because society has determined that encouraging and protecting certain relationships and communications is more important than having all possible evidence admitted at trial. Some examples of privileged communications listed in the Military Rules of Evidence include: those between spouses; with a clergy member; between a patient and a medical professional; and between a lawyer and a client. Society wants to ensure that patients will be completely honest with a medical professional and receive the proper diagnosis and treatment, or that an individual will go to a clergy member for guidance or solace, or that spouses will be open and honest with each other. These rules of privilege work to encourage individuals to be honest within these relationships or with these professionals without fear that their statements will later be used against them in court.

The Court of Appeals for the Armed Forces was recently asked to determine the limits of one of these rules of privilege. Military Rule of Evidence 513 creates a privilege for communications made between a psychotherapist and a patient. It is, essentially, the mental health equivalent of the doctor-patient privilege. The language of the rule states that a patient has the privilege to refuse to disclose, and block anyone else from disclosing, a “confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist” where the communication “was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.” In United States v. Mellette, three of the five judges on the Court of Appeals decided that this rule only protects the confidential communications and any records that contain those communications. The rule does not protect the diagnosis or treatment plans, so long as the records containing the diagnosis and treatment plan are written in a way that they do not disclose the confidential communications.

The majority of the Court of Appeals came to this conclusion based upon the plain language of the rule itself, noting that some states have expanded the protection to communications and records, but that the military rule refers only to communications. The Court also relied upon the Supreme Court’s case law encouraging courts to narrowly and strictly construe rules of privilege since these rules contravene the “normally predominant principle of utilizing all rational means for ascertaining truth.” Because rules of privilege keep relevant information out of court, and trials are supposed to be a search for the truth, the rules should be interpreted as narrowly as possible.

The other two judges on the Court dissented, arguing that mental health diagnoses and treatment plans will ordinarily reflect, at least in part, the confidential communications of the patient because most mental health diagnoses are based upon what a patient communicates to the provider.

The Court set aside the lower court’s decision in the case and sent the case back to the trial level for a hearing to determine which mental health records should have been provided to the appellant at trial under this ruling. If you or your loved one wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

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