Health Law Case Brief: Walden Behavioral Care v. K.I.

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By: Stephanie Regan, Esq.

In Walden Behavioral Care v. K.I., the District Court, Appellate Division[1], held that the patient-psychotherapist privilege does not apply to civil commitment hearings.

Walden Behavioral Care (“Walden”), a private mental health facility, petitioned the District Court to commit and retain K.I., a patient at its facility.  During the hearing on the petition, K.I. moved to exclude any evidence based on his own statements to his treating physician, arguing that they constituted patient-psychotherapist communications, which are privileged pursuant to MGL c.233 §20B.  The District Court denied the motion, and allowed testimony from the attending psychiatrist, who testified that K.I. had repeatedly indicated that voices were telling him to kill himself and that he intended to do so.  The District Court subsequently committed K.I. to Walden based upon its finding that failure to retain K.I. at Walden would create a likelihood of serious harm and that there was no less restrictive alternative.

K.I. appealed to the District Court, Appellate Division, contending that the District Court erred in allowing privileged patient-psychotherapist communications to be used as the basis for his commitment because he had not been warned that his statements could be used in this manner and he had not otherwise waived the privilege.  As summarized below, the Appellate Division ultimately concluded that an individual may not assert the patient-psychotherapist privilege in order to prevent the introduction of patient-psychotherapist communications in a civil commitment proceeding pursuant to M.G.L. c.123, §§7,8.  K.I.’s commitment was consequently affirmed.

The Appellate Division began by examining both statutes.  The civil commitment statute, M.G.L. c.123 §§7,8 allows a facility to petition the District Court for commitment and retention of a patient for up to six (6) months if it determines that a “failure to hospitalize would create a likelihood of serious harm by reason of mental illness.”[2]  After hearing on the petition, the District Court may issue an order of commitment only upon a finding, beyond a reasonable doubt, that (1) the patient is mentally ill and (2) discharge of the patient would create a likelihood of serious harm.[3] Commitment is not authorized unless there is a showing of “imminent danger of harm.”[4]

That patient-psychotherapist privilege, M.G.L. c.233 §20B, is an evidentiary privilege which allows a patient to refuse to disclose, or prevent a witness from disclosing, “any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient’s mental or emotional condition.”  There are several exceptions to this privilege.  Unless an exception applies, a patient may prevent disclosure of the communication in a court proceeding or in any proceeding preliminary to such court proceeding.

The Appellate Division addressed two exceptions to the patient-psychotherapist privilege that were potentially relevant to this case.  First, exception (b) provides that the privilege does not apply where, during a court-ordered examination, the patient is informed that his or her communications to a psychotherapist will not be privileged.[5]  This “warning” regarding the lack of privilege is also referred to as a “Lamb warning.”[6]

The Appellate Division relied on a plain reading of exception (b) in determining that it does not apply to civil commitment hearings, and thus no Lamb warning is required as a precondition to the admissibility of patient-psychotherapist communications at such proceedings.  Exception (b) expressly applies to communications made “in the course of a psychiatric examination ordered by the court.”[7]  This excludes communications that, as in this case, take place in the context of hospital treatment.  Further, the Appellate Division noted that the policy considerations behind the exception are not implicated in civil commitment hearings, as the exception is intended, “to permit a court to utilize expert psychiatric evidence by ordering an examination,”[8] which takes place “in anticipation of a future proceeding” in which the defendant’s mental state will be at issue.[9]  The purpose of communications presented during a civil commitment hearing, however, are to provide treatment to the patient and they are not in anticipation of any future proceeding.

The Appellate Division next looked at exception (a), which has been referred to as the “dangerous patient exception.”[10] This exception permits the disclosure of patient-psychotherapist communications for the purpose of hospitalization (or placing the patient under arrest or under the supervision of law enforcement) in cases where a psychotherapist encounters a patient who poses an imminent danger of harm.[11]  Where a communication is disclosed for the purpose of hospitalization, the privilege will apply after the patient is in such hospital.[12]

Upon reading exception (a) together with the civil commitment statute, the Appellate Division ultimately concluded that, given the purpose of exception (a), the patient-psychotherapist privilege does not apply to civil commitment proceedings under M.G.L. c.123 §§7, 8.  The Appellate Division observed that the disclosure of communications contemplated by exception (a) is consistent with the purpose of a civil commitment proceeding, which is to commit or retain a patient at a time when the patient presents an imminent danger of harm.  While acknowledging the significant consequences of civil commitment proceedings and the importance of procedural safeguards, the Appellate Division stressed its refusal to interpret the laws in a manner that produces an absurd result.  It noted that often, patient-psychotherapist communications are the only relevant, and indeed most critical, evidence available at a civil commitment hearing.  If the privilege could be asserted to preclude such evidence, it would result in the release of a potentially dangerous person, without appropriate treatment, into the community.  Such a statutory construction would defeat the purpose of the civil commitment proceeding.

Finally, this case includes a dissenting opinion that contends that Lamb warnings should not be limited to court ordered examinations.  Rather, the dissent contends that when a psychotherapist examination is initiated by the petitioner, for the purpose of determining whether to proceed to civil commitment, the patient should be administered Lamb warnings and there should be no disclosure of any patient-psychotherapist communications absent the patient’s knowing and voluntary of waiver of the privilege.

 

Stephanie Regan is a health care attorney in the Boston area.  She spent eight years as an Associate in the Health Care Department of Donoghue, Barrett & Singal, P.C., where she provided advice to health care clients on a wide range of health and business law matters.  She received her law degree with a Concentration in Health and Biomedical Law from Suffolk University Law School, where she was a founding staff member of the Journal of Health and Biomedical Law.  During law school, Ms. Regan interned in the Health Care Fraud Division of the United States Attorney’s Office.  Prior to law school, Ms. Regan worked as a Legislative Aide in the Massachusetts House of Representatives.  She received her undergraduate degree from Boston College.

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[1] Please note this case is currently pending in the Appeals Court.

[2] M.G.L. c.123 §7(a)

[3] M.G.L. c.123 §8(a)

[4] Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 105, 725 N.E.2d 552 (2000) quoting Lessard v. Schmidt, 349 F. Supp. 1078, 1093 (E.D. Wis. 1972)

[5] M.G.L. c.233 §20B(b)

[6] See Commonwealth v. Mercado, 452 Mass. 662, 665 n. 5, 896 N.E.2d 1262 (2008), citing Commonwealth v. Lamb, 365 Mass. 265, 311 N.E.2d 47 (1974) (referencing right to Lamb warning in case of court-ordered examination)

[7] M.G.L. c.233 §20B(b)

[8] Commonwealth v. Lamb 364 Mass. 265, 269, 311 N.E.2d 47 (1974)

[9] Commonwealth v. Seabrooks, 433 Mass. 439, 450-451, 743 N.E.2d 831 (2001)

[10] See Commonwealth v. Brandwein, 435 Mass. 623, 628, 760 N.E.2d 724 (2002)

[11] M.G.L. c.233 §20B(a)

[12] Id.

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