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).

15 Responses to “In an Article 6b writ petition, the Coast Guard CCA extends the psychotherapist-patient privilege to conclusions, diagnoses, and treatments”

  1. stewie says:

    Really closing the doors on ever getting mental health even relevant and necessary mental health information of an alleged victim short of her talking about it directly, and in sufficient detail to an unprivileged person.

  2. RY says:

    Couldn’t CAAF also review the case if it is certified, a la L.R.M. v. Kastenberg?  Interesting too that CGCCA entertained the writ given the standards for a writ…a writ is not supposed to issue unless the law is clear.  If it’s a case of first impression, then it would not be clear.  IMHO, this is clearly the wrong decision.  The diagnosis and medication are not communications. 

  3. rob klant says:

    Interesting, I think, that the items the military judge ordered produced were only those already subject to disclosure upon request by the victim’s CO IAW C7.11 of DoD 6025.18-R, and which military health care providers would be affirmatively required to disclose to the victim’s CO — depending on the nature of the mental health condition — IAW enclosure (2) of DoD 6490.08.  
    There are addiitonal required disclosures required as well, such as when certain medications are prescribed which prevent issuance of weapons, weapons training, or deployment, at least temporarily.
    It would be difficult for me to find that the items ordered produced by the military judge could somehow qualify as “confidential communications” under the rule, when they are regularly subject to disclosure to command authorities under various departmental/service regulations, at least in the case of active-duty members. 

  4. k fischer says:

    Mental health records are very relevant in so many cases.  For instance, a dependent wife with a borderline personality disorder is abusing her military husband, so he files for divorce.  She goes down to Family Advocacy and makes a false unrestricted report of spousal rape and abuse to ruin his career as she so often told him during their marriage.  It happens a lot, and is the reason cases result in an acquittal.  So, what does Congress do?  Lets make it impossible to obtain the records.  Give her an attorney and make it illegal for Defense counsel to speak to her.  Don’t require her to testify at an Article 32 where she might have to disclose the records.  Then, make the defense present some evidence that these records exist, even though they cannot confirm that they exist in many cases unless she admits that the do, which she won’t, because defense counsel is prohibited from speaking to her.  That cuts down on the acquittal rate for sex offenses at the expense of the Accused’s 6th Amendment right.
    Same deal with the Article 32 hearing.  There were too many acquittals because alleged vics could not keep their stories straight between what they stated under oath at the Article 32 and their testimony at trial.  So, don’t require her to testify at the Article 32, so she doesn’t get impeached at trial.
    What about when she makes a statement to CID?  Let’s have Victim-centric questioning and subscribe to the “Believe the Victim” mantra.  Just ask her general questions about the incident.  If there appears to be any trouble spots, then just don’t address them.  Limit your communications with her because the more you question her, the less she is likely to keep her story straight and she will get impeached at trial.  Don’t take any subsequent sworn statements from her.  Just speak to her generally, so there isn’t any evidence of her contradicting her previous story.
    And, of course, don’t forget 412.  A woman gets drunk every weekend and has a one night stand with a different random guy without discovery and on her last romp is late to formation, is caught fraternizing, is caught cheating on her significant other, or really likes a guy, but he doesn’t return her call, so she makes a false allegation.  The Government is permitted to get her up on the stand dressed like an Amish woman and testify that she got drunk and was taken advantage of by the poor schlep who never saw the false allegation coming.  The Defense is prohibited from bringing in her weekly ritual of random one night stands with different men after she had been drinking, even though it goes to the heart of the accused’s mistake of fact defense: “I didn’t think she was too drunk to consent.  She gets drunk every weekend and goes home with a guy.  She has a reputation for it, and I thought I was the next pitcher in her rotation.”  The panel is misled into believing this poor innocent female was just taken advantage of by a predator.
    So, why is it that in most sexual assault cases are SVP’s typically trying to keep out more evidence than defense counsel?  How is this a search for the truth?   Quite simply, its not.  It is a system designed to obtain convictions.

  5. Vulture says:

    Perhaps by being a case of first impression the circumstances that the CCA are considering played a more significant role.  By that I mean that under the particular set of facts of this case, the compulsion to reveal those records was inappropriate.  By being a novel question, the CGCCA saw something in those records that required sustaining privilege.  The points above are well taken under those circumstances but I am surprised that something like this has not appeared previously.

  6. Zachary D Spilman says:

    I think the reason there’s not much precedent on this issue, Vulture, is because there’s not much precedent on alleged victims appealing anything. 

  7. Vulture says:

    That makes sense.  The particular aspect that I am pointing to is that an alleged perpetrator’s “Don’t believe that hysterical bitch.” or “That crazy cunt is out of her fuckin mind.” isn’t new.  It’s a response that saddles well into often misogynist environments and implicates the alleged victim’s mental state from the start.  Not to say that that is a ubiquitous set of circumstances but that it favors plausibility.  On balance is the question, “If she is so crazy, what makes you think that she was able to consent?”  So how it took this long to get this kind of review is kind of surprising.  I guess that these kind of questions came out I the old 32 process and got some resolution there.

  8. k fischer says:

    To what facts are you referring when you say “under the particular set of facts of this case, the compulsion to reveal those records was inappropriate”?  I did not see any facts in the opinion other than procedural facts.

  9. Tami a/k/a Princess Leia says:

    There is nothing automatic about reporting a Servicemember’s mental health diagnosis or medications to commanders.  Instead, the required disclosures under DODI 6490.08 are only IF the SM poses a risk of harm to self or others, or to a specific operational mission, IF the SM is in the PRP, IF the SM has been admitted for inpatient care, IF the SM has a medical condition or receiving treatment interfering with duty, IF the SM is enrolled in a substance abuse treatment program, or If the commander directed a mental health evaluation.
    Medications, as well as dose and frequency of dose taken, are not “privileged,” this information should be contained in her health records, which are not privileged.  Not sure why defense is arguing for this information out of MH records.  Also, diagnosis would be disclosed to health insurance providers (i.e. Tricare), per patient authorization.  Authorizing disclosure of MH information to medical insurance providers waives privilege.  In re Zuniga, 714 F.2d 632, 640-41 (6th Cir. 1983); In re Pebsworth, 705 F.3d 261 (7th Cir. 1983).  Patients can’t pick and choose who they will waive privilege for and who they will invoke privilege for.  Once MRE 513 privilege is waived by the patient, it’s waived permanently.  Burden-Meeks v. Welch, 319 F.3d 897-899 (7th. Cir. 2003).  I’d suggest getting w/ Tricare to get copies of claims and reimbursements.  Records will show the diagnostic code.

  10. afjagcapt says:

    @Tami a/k/a Princess Leia
    Completely concur with your first paragraph.
    Take issue with some of points in your second. It is unlikely diagnosis would have been disclosed per patient authorization and it would not have been required. DoD 6025.18-R, C4 concerns disclosures for treatment, payment and health care operations (TPO) and requires no authorization from the patient. Thus I don’t see how the analysis from Burden-Meeks, which is obviously not binding, is even relevant. Moreover, even if the patient had provided such authorization to an insurance provider, I’d point you to the language in the case: “knowing disclosure to a third party ALMOST invariably surrenders the privilege with respect to the world at large…” Burden-Meeks deals with a 3rd party law-firm representing the interests of (essentially) a collective insurance group disclosing a litigation risk report to the defendant in a suit which the plaintiff then sought and the court determined the privileged waived. Given the point of Jaffee, I’d say this presents a pretty good example of a time when the ALMOST raises its head as it is ludicrous to basically condition the applicability of the privilege on one’s ability to pay out of pocket for mental health treatment…something that service members are essentially prohibited from doing anyway. 

  11. Vulture says:

    Yes, that is true.  But the judges that decided the case would have seen the records and the had a basis in fact to make their decision.  My premise was that, as a case of first impression, they would have considered or placed a greater emphasis on them.  That would seem to be the case regardless of what we see, but more so because those records weren’t to be seen by anyone.  I guess I am showing my stance on this because I view patient/doctor confidentiality a line cautiously crossed; like first do no harm cautiously crossed.  So the CGCCA had a decision before it to articulate what is allowable to bring into the public eye to establish credibility, and they presented a barrier to it.  Maybe the legal construct they went about to hear the case is questionable, as RY seems to be saying.  But I agree with the ruling.

  12. nancy Truax says:

    Does the DoDI apply to the Coast Guard?

  13. afjagcapt says:

    @nancy truax, yes; see para. C3.3.

  14. rob klant says:

    FWIW, mental health information is also available to commanders by means of a command-directed mental health evaluation, conducted IAW DoD 6490.04.
    Although traditionally reserved for situations where members pose a possible threat to self/others, the revised instruction encourages more liberal use:
    “The use of mental health services is considered, whenever possible, to be comparable to the use of other medical and health services.”
    * * *
    “Such evaluations may be for a variety of concerns, including fitness for duty, occupational requirements, safety issues, significant changes in performance, or behavior changes that may be attributable to possible mental status changes.”
    The reports of such evaluations are excepted from the constraints on disclosure under both DoD 6025.18-R and DoD 6490.08.
    The bottom-line, it seems to me, is that mental health information of the sort ordered produced by the military judge in this case is neither “confidential” nor a “communication” subject to the MRE 513 privilege, at least with regards to active-duty members.

  15. Vulture says:

    r klant.
    These instructions encourage to consider and compare, concern, and evaluate: and then scribe someone else’s mental state.  Yep, that is liberal.