H.V. v. Kitchen

ORDER—PANEL THIRTY-FIVE McClelland, Chief Judge; Petitioner, an alleged victim of a crime under the Uniform Code of Military Justice [718] (UCMJ), seeks extraordinary relief in the nature of a writ of mandamus requiring the military judge in the court-martial case of ■United States v. Randolph to comply with Military Rule of Evidence 513, Manual for Courts-Martial, United -States (2012 ed.), as amended by Executive Order 13696, 80 Fed. Reg. 35,783 (17 June 2015), asserting that the military judge erred by ordering production to the defense of certain mental health records of Petitioner. Pursuant to our order of 17 June 2016, the real party in interest filed an Answer to the Petition on 28 June 2016. Petitioner filed a Reply on 5 July 2016. We have jurisdiction to entertain the petition under Article 6b(e)(l), UCMJ, as the alleged victim asserts a violation of her substantive rights under Military Rule of Evidence (M.R.E.) 513, Manual for Courts-Martial, United States (2012 ed.), as amended by Executive Order 13696, 80 Fed. Reg. 35,783 (17 June 2015). We may issue the writ if Petitioner has no other adequate means to obtain relief, the right to issuance of the writ is clear and indisputable, and issuance of it is appropriate. Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F.2012). M.R.E. 513 establishes a psychotherapist-patient privilege. M.R.E. 513(a) sets forth a general rule of privilege: 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 UCMJ, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition. M.R.E. 513(b)(5) provides: “Evidence of a patient’s records or communications” is testimony of a psychotherapist, or assistant to the same, or patient records that pertain to communications by a patient to a psychotherapist, or assistant to the same for the purposes of diagnosis or treatment of the patient’s mental or emotional condition. M.R.E. 513(d) provides exceptions to the privilege, none of which is raised in this ease. Consequently, if the privilege applies to any of the mental health records the military judge ordered produced, she erred with regard to those records. At the trial of United States v. Randolph, the defense moved to compel production of the alleged victim’s mental health records for in camera review notwithstanding the privilege claimed by the alleged victim. It was acknowledged that such records.existed. After a hearing, the military judge ruled that M.R.E. 513 did “not prevent the disclosure of dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used.” Accordingly, she ordered the Government to produce for the defense the mental health records of Petitioner for a stated period of time, 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.... (Exhibit 3 to Petitioner’s Brief in Support of Petition (United States v. Randolph, Court Ruling on Defense Motion to Compel Production of Mental Health Records dated 11 March 2016).) The issue before us is whether the privilege is limited to the patient’s communications themselves or extends to the psychotherapist’s conclusions (diagnoses) and resulting treatments. M.R.E. 513 grew out of Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), which recognized a federal psychotherapist-patient privilege, based on the existence of some form of psychotherapist privilege in all fifty states and the District of Columbia. Jaffee, 518 U.S. at 12, 116 S.Ct. 1923. The privilege “covers confidential communications” made to licensed psychiatrists and psychologists and clinical social workers. Id. at 15, 116 S.Ct. 1923. Under the privilege, confidential conversations between patients and psychotherapists [719] are protected from compelled disclosure. Id. at 18, 116 S.Ct. 1923. Development of the details of the privilege was left to later cases. Id. We are not aware of any federal appellate court decisions on the issue at hand. The published cases brought to our attention that are directly on point amount to a single federal district court case. In Stark v. Hartt Transportation Systems, Inc., 937 F.Supp.2d 88, 92 (D. Me. 2013), the court held “that the privilege shields information revealing the plaintiff’s diagnoses and the nature of his treatment.” The court explained, A person’s mental health diagnoses and the nature of his or her treatment inherently reveal something of the private, sensitive concerns that led him or her to seek treatment and necessarily reflect, at least in part, his or her confidential communications to the psychotherapist. As the N.G. court noted in rejecting an argument similar to the one advanced by the defendant in this case, “The privilege would essentially be gutted if a psychotherapist could be ordered to testify about a person’s diagnosis or treatment, over the person’s objection, so long as the psychotherapist refrained from expressly describing or referring to the content of any confidential communications.” N.G. [v. Superior Court], 291 P.3d [328], 334 [(Alaska App. 2012)]. Construing the privilege in this “narrow fashion ... would defeat the societal interests protected by the privilege.” Id. Stark, 937 F.Supp.2d 88, 91-92. Stark observes that the privilege does not extend to information regarding the occurrence of treatment, including whether a psychotherapist treated the privilege holder, the dates of treatment, and the length of treatment on each date. Id. at 90. Stark ⅛ statement that diagnoses and the nature of treatment necessarily reflect, in part, the patient’s confidential communications to the psychotherapist is undeniable. Most diagnoses of mental disorders rely extensively on what the patient has communicated to the psychotherapist. Contrary to the dissent’s assertion that diagnosis and treatments are matters of fact that exist independent of any communications between the patient and the psychotherapist, diagnosis does not have an independent existence. Jaffee emphasized this point: a psychiatrist’s ability to help her patients is completely dependent upon [the patients’] willingness and ability to talk freely. This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure ... patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule ..., there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment. Jaffee, 518 U.S. at 10, 116 S.Ct. 1923 (brackets and omissions in original; quotation marks and citations omitted). An unpublished case exemplifies the contrary position. In a case in Massachusetts, the court concluded that a patient’s mental health diagnoses and treatments are not within the privilege, citing a Massachusetts appellate case. Silvestri v. Smith, No. 14-13137, 2016 WL 778358 (D. Mass. Feb. 26, 2016). Another unpublished case, United States v. White, No. 2:12-cr-00221, 2013 WL 1404877 (S.D.W.V. April 5, 2013), aligns with the Stark case. We are persuaded that the Stark approach is correct. 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. Petitioner urges that if dates of treatment and identity of provider are not privileged, that information should nevertheless not be produced because the defense failed to demonstrate that the information is relevant and necessary, as required by Rule for Courts720 Martial 703(f)(1), Manual for Courts-Martial, United States (2012 ed.). That may be so, but the issue is beyond our remit under Article 6b. Petitioner should seek some other avenue to address it, such as by requesting reconsideration from the military judge. It is, by the Court, this 8th day of July, 2016, ORDERED: That the Petition for Extraordinary Relief is granted; that the military judge shall protect the mental health records of Petitioner from disclosure in accordance with M.R.E. 513 as interpreted by this opinion. Judge JUDGE concurs.