In an Article 6b writ petition, the Coast Guard CCA extends the psychotherapist-patient privilege to conclusions, diagnoses, and treatments
In a published order in H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, 75 M.J. 717, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (link to order), a three-judge panel of the Coast Guard Court of Criminal Appeals holds that Mil. R. Evid. 513 (the psychotherapist-patient privilege) extends “to the psychotherapist’s conclusions (diagnoses) and resulting treatments.” Order at 3.
The privilege states that:
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.
Mil. R. Evid. 513(a).
H.V. is a member of the Coast Guard and an alleged victim in a court-martial. The defense moved to compel production of her mental health records. Considering the motion the military judge, Commander Kitchen, determined that Mil. R. Evid. 513 does not apply to “the disclosure of dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used,” and accordingly ordered production of H.V.’s mental health records:
limited to ONLY those portions indicating a psychiatric diagnosis (as this phrase is used in the DSM-5), 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, if applicable.
Order at 2 (quoting military judge’s ruling). H.V., however, does not want even these records disclosed, and so she sought a writ of mandamus under Article 6b from the CCA to compel the military judge to apply the privilege to these records.
In what I believe is a case of first impression, the panel of the Coast Guard CCA splits 2-1 to grant the writ and expand the privilege, with Chief Judge McClelland writing for the majority and Judge Bruce dissenting.
Adopting the reasoning of a single published federal district court decision, Chief Judge McClelland holds that “diagnoses and the nature of treatment necessarily reflect, in part, the patient’s confidential communications to the psychotherapist.” Order at 4 (discussing Stark v. Hartt Transportation Systems, Inc., 937 F.Supp.2d 88, 92 (D. Me. 2013)). Accordingly:
we find 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.
Order at 4-5.
Dissenting, however, Judge Bruce notes that:
the rule protects “communication” “made for the purpose of facilitating diagnosis or treatment,” not including diagnosis and treatment.
Order at 7 (Bruce, J., dissenting) (emphasis in original).
Curiously, while Judge Bruce writes that the privilege “should not be broadly interpreted,” order at 7, neither opinion addresses CAAF’s clear precedent that:
Because privileges “run contrary to a court’s truth-seeking function,” they are narrowly construed. United States v. Custis, 65 M.J. 366, 369 (C.A.A.F. 2007).
United States v. Jasper, 72 M.J. 276, 280 (C.A.A.F. 2013). The majority’s reading, however, is hardly narrow.
Another interesting twist is CAAF’s limited jurisdiction to review this decision. CAAF just recently determined that it does not have jurisdiction over Article 6b petitions. See EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page). However, the accused could seek a writ himself challenging the military judge’s application of the CCA’s decision, and that writ could even be sought directly from CAAF. See CAAF R. 4(b). Alternatively, the military judge could apply the CCA’s decision, the accused could be convicted, and CAAF could review the decision in the ordinary course of appeal. Cf. United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013) (CAAFlog case page) (CAAF declined an interlocutory challenge to the AFCCA’s reversal of a military judge’s suppression ruling, but then reinstated the suppression ruling on appeal after conviction).