Wednesday, February 13, 2008

Psychotherapist-Patient Privilege Only Applies to Communications Made with Reasonable Expectation of Confidentiality

United States v. Auster, No. 07-30084 (5th Cir. Feb. 11, 2008) (Higginbotham, Davis, Smith)

Auster is a retired New Orleans police officer. He had been underoing therapy for paranoia, anger, and depression for a number of years. Workers' comp covered the treatment, and an outfit named CCMSI managed his benefit claim.

Over the years, Auster had made threats to various individuals during his therapy sessions. His therapists conveyed those threats to their targets, pursuant to a state-law "duty to warn." Auster knew this, because his therapists told him they were doing that.

Much of Auster's anger stemmed from CCMSI's management of his workers' comp benefits. At one point, CCMSI told Auster that it would stop paying a portion of his benefits. In a later therapy session, Auster apparently responded by threatening "violent retribution" against various people, including CCMSI employees. Auster's therapist relayed the threat to Keith Smith, a CCMSI employee who handled Auster's claim, and warned that Auster had "stockpiles of weapons and supplies to provide the basis for his actions."

Smith went to the authorities, and Auster was arrested. The feds indicted him on a Hobbes Act charge of attempting to extort the property of CCMSI by threatening force and violence via his psychotherapist if his benefits were reduced. Auster moved to dismiss the indictment. Although the court refused to do so, it nevertheless suppressed the communications relayed to CCMSI, citing the psychotherapist-patient privilege.

The Government appealed, and the court of appeals reversed. It held that under the Supreme Court's decision in Jaffe v. Redmond, the privilege only applies to communications made with a reasonable expectation of privacy. Auster lacked that expectation, so the court held, because his therapists repeatedly told him that they would relay his violent threats to the potential victims. Thus, "[b]ecause Auster’s non-confidential statement cannot, as a matter of law, be privileged," the court reversed the suppression order.

As the court acknowledged, there is a circuit split on this issue. The Sixth and Ninth Circuits have held that statements made in psychotherapy sessions may be privileged even in the absence of a reasonable expectation of privacy, for a variety of policy and prudential reasons. Auster found those justifications unpersuasive, and considered Jaffe controlling in any event.

The Tenth Circuit, by contrast, has recognized a "dangerous patient" exception to the privilege. Auster accords with that result, but declined to decide "whether there is a dangerous-patient or crime-fraud exception to the psychotherapist-patient privilege" because of the way it resolved the question.

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