The Psychotherapist-Patient Privilege (Part I): Coverage Of Statements To A Physician's Assistant

In prosecution for possessing a chemical weapon, the defendant's statements to emergency room physician's assistant were not protected by the psychotherapist-patient privilege as the assistant (1) was not a "licensed individual[ ] actually involved in mental health treatment"; (2) merely collected or transmitted the patient's intake information; and (3) did not participate in the defendant's diagnosis or treatment, in United States v. Ghane, __ F.3d __ (8th Cir. March 9, 2012) (No. 11–1556)

The scope of the psychotherapist-patient privilege is said to extend "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." It often includes similar communications made to “those present to further the interest of the patient in the consultation, examination, or interview” with the psychotherapist. How broadly does the coverage of non-psychotherapeutic parties extend? The Eighth Circuit recently addressed this foundational requirement in an assessment of why certain hospital personnel fall inside or outside the privilege's protections.

In the case, defendant Ghane "checked himself" into a hospital emergency room because he was having suicidal thoughts and he had a "history of significant mental illness." A routine "intake examination" by a physician's assistant who conducted an interview with the defendant on a special form "created specifically to record" an evaluation of a person for admission to a "proper health unit." During this examination, the defendant told the assistant that he was "having suicidal thoughts." In response to the assistant's questions about whether he had the "plan and means" to carry it out, the defendant "responded that if he were to commit suicide, he would use cyanide, which he had access to at his apartment. Ghane also stated that he would not be willing to give up the cyanide because 'he might want to use it later.'" Ghane, __ F.3d at __.

The Eighth Circuit agreed with the trial court's findings that the privilege did not apply to the statements the defendant made to the physician's assistant. The district court had reasoned that the defendant's "statements ... to [physician's assistant] Gluhovsky during the ER intake interview and examination were not protected by the privilege because Gluhovsky was not a licensed psychotherapist" and that he failed to participate in the diagnosis and treatment of the defendant under the direction of a licensed psychotherapist. The circuit's analysis of this factor suggested application of a somewhat broader analysis. Ghane, __ F.3d at __.

As explained by the Eighth Circuit, the proper focus was not simply the qualification of the provider of the psychotherapeutic treatment, but also involved a close examination of whether the 1) assistant collected only intake information and 2) did not have a role in the defendant's diagnosis or treatment. As explained by the circuit, the proper inquiry was whether the assistant:

....was somehow integral or necessary to Ghane's psychiatric treatment.... 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. Ghane argues that because the information collected by Gluhovsky was transmitted to [treating psychotherapist] Dr. Houghton and Gluhovsky knew that all of the information he collected would be employed by a psychiatrist in diagnosing and treating Ghane, Gluhovsky was reasonably necessary for the transmission of the communication, and thus all statements Ghane made to Gluhovsky during the ER intake interview are covered by the privilege. Granted, the information recorded by Gluhovsky certainly became part of Ghane's admitting chart, but there is no evidence that this information was used in Ghane's later treatment or diagnosis, nor is it likely that it would be used in a way contemplated by the Supreme Court Standard. Dr. Houghton had no contact with Gluhovsky throughout these incidents.... Gluhovsky in no way treated Ghane, did not conduct psychotherapy or counseling, nor did he consult with Dr. Houghton or any other psychiatrist during the relevant time period. Passing intake information along in a chart does not suffice as “treatment” sufficient to cloak these conversations with the privilege.
Ghane, __ F.3d at __. The circuit noted that in light of the clear limit of the privilege to licensed individuals actually involved in mental health treatment, "a contrary conclusion on these facts would not comport with binding precedent. Therefore, as to the statements made by Ghane to Gluhovsky, the district court did not err by denying application of the psychotherapist-patient testimonial privilege." Ghane, __ F.3d at __ (citing Jaffee v. Redmond, 518 U.S. 1, 15–18 (1996)).

While the licensing of the psychotherapist was a valid factor, the circuit seemed to suggest that the proper inquiry was a bit broader: "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." Ghane, __ F.3d at __ (emphasis added). Regardless of the medical professional's qualifications or licensing, it was this subjective reason for the defendant's disclosure of confidential information that played an important role.

Federal Rules of Evidence