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.
As CAAFLog reports, 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.
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