In an unexpected decision, the United States Coast Guard Court of Criminal
Appeals (CCA) has provided an extension of the psychotherapist-patient
privilege. In the court's published order, the majority has ruled
that diagnoses, prescriptions, conclusions, treatments, and other key
pieces of information can remain protected as part of the psychotherapist-patient
privilege under Mil. R. Evid. 513.
H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest concerns H.V., a Coast Guard member and the alleged victim in a current
criminal case. When a military judge ordered the release of H.V.'s
psychotherapy records, H.V. objected.
H.V. claimed psychotherapist-patient privilege under Mil. R. Evid. 513.
This rule claims 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... if such communication
was made for the purpose of facilitating diagnosis or treatment of the
patient’s mental or emotional condition."
However, a commander reviewing the case, Commander Kitchen, ruled that
Mil. R. Evid. 513 is a blanket rule which covers all information that
is gathered during psychotherapy. Commander Kitchen writes that the rule
allows for the release of "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." H.V. went on to appeal Commander
Kitchen's interpretation of Mil. R. Evid. 513, and sought an Article
6b writ of mandamus from the CCA.
In a split 2-1 decision, the CCA panel reversed Commander Kitchen's
determination on Mil. R. Evid. 513, which is believed to be an unprecedented
expansion on the psychotherapist-patient privilege. Citing only a single
federal district court decision, Chief Judge McClelland wrote for the
majority that "diagnoses and the nature of treatment necessarily
reflect, in part, the patient’s confidential communications to the
psychotherapist," but that the Mil. R. Evid. 513 did allow for the
"release of dates of treatment and the identity of the provider and
time taken on each date..."
Dissenting Judge Bruce believed that this interpretation of Mil. R. Evid.
513 was too permissive. He writes that "the rule protects 'communication'
'made for the purpose of facilitating diagnosis or treatment,'
not including diagnosis and treatment." Regardless, H.V. will be
allowed to keep their psychotherapy records confidential for the rest
of the resumed court-martial.
Rulings like this one can be a double-edged sword. While individual protections
are important, they can also limit the ability for counsel to challenge
or affirm the claims of an alleged victim, a witness, the accused, or
any other party subject to a court-martial. As CAAFLog notes, other military
courts have provided more stringent rulings when it comes to privileges
such as these but, unless this matter is appealed further, this ruling
has the potential to have far-reaching effects on the court-martial discovery process.
If you are a military servicemember that's been accused of a criminal
act, then you do have a choice in your defense counsel.
Joseph L. Jordan, Attorney at Law is 10+ year U.S. Army veteran who now travels the globe to represent the
rights and interests of accused armed service members. We have consistently
secured favorable outcomes for our clients and always ensure that they
receive every legal consideration they deserve.
Want to learn more about what our firm can do for you during this uncertain
time? Contact our firm today to request a
free case evaluation.