Some therapist-patient communications not privileged, court says.

The therapist-patient privilege does not apply to threats made by a patient directly to his or her therapist when the patient had reason to believe the therapist would report the threats, the Fifth Circuit has ruled. In reversing a trial court order to suppress evidence of the threats, the court acknowledged a split on this issue in federal courts and cited contrary rulings from the Sixth and Ninth circuits. (United States v. Auster, 517 F.3d 312 (5th Cir. 2008).)

John Auster, a retired New Orleans police officer, began undergoing psychotherapy for paranoia and depression in 1989. His doctors were Fred Davis and Harold Ginzburg. The therapy was paid for by workers' compensation and managed by CCMSI, a third-party administrator based in Danville, Illinois.

During several therapy sessions, Auster threatened to harm different people who had angered him, and frequent targets of those threats were the employees and managers of CCMSI. Auster often told his doctors that he was unhappy with the way the company managed his workers' comp payments. His doctors had reported these threats to Auster's targets and told him they would continue to do so.

In September 2006, CCMSI told Auster that his benefits would be reduced in October. Auster discussed this information with Davis and stated that he intended to physically harm certain CCMSI employees, city-government workers, and police officers. He even gave a specific date--October 2--as the one on which he planned to take action.

Because therapists in Louisiana have a legal duty to warn about threats to others made by patients, Auster's doctors notified the CCMSI employees by letter. CCMSI contacted the police, who arrested Auster. He was charged with extortion.

At trial, the court denied Auster's motion to dismiss the charge, but it ruled that the statements he had made to his therapists were inadmissible under the therapist-patient privilege. The government appealed.

In reversing the trial court, the Fifth Circuit cited the 1996 U.S. Supreme Court decision Jaffee v. Redmond, which held that the psychotherapist-patient privilege applies to all confidential statements made in therapy. (518 U.S. 1 (1996).) Circuit Judge Jerry Edwin Smith, writing for the court, said the Supreme Court's unambiguous definition of "confidential communications" ran counter to Auster's experience because he knew that his therapists had reported his earlier threats and would tell CCMSI about his plans to exact revenge.

"Jaffee's explicit confidentiality," Smith wrote, "is fatal to Auster's claim of privilege ... because he had no reasonable basis to conclude the statement was confidential. As a matter of law, where the confidentiality requirement has not been satisfied, the psychotherapist-patient privilege--as with other privileges--does not apply."

The Sixth and Ninth circuits have held that statements made in therapy, even without a reasonable expectation of privacy, should be considered confidential and that the harm of permitting such evidence in trial outweighs the benefits.

The Sixth Circuit, however, also has ruled that there is a "dangerous patient" exception to Jaffee, meaning that a therapist may testify about a patient's confidential statements if the therapist has warned the patient's intended victim. (United States v. Hayes, 227 F.3d 578 (6th Cir. 2000).)

But the Ninth Circuit, in an en banc ruling, held that there is no such exception and that a patient's statements must be protected from disclosure, even if the therapist issued a warning to the patient's target. (United States v. Chase, 340 F.3d 978 (9th Cir. 2003).)

The Fifth Circuit called the reasoning of the other appeals courts unpersuasive and said Jaffee should be the controlling authority.

Jim Letten, U.S. attorney for the Eastern District of Louisiana, said the decision "does not intrude on the sanctity of the patient-therapist privilege. The privilege yielded to the fact that the patient intended this information to go beyond the therapy room. This ruling was very fact-specific, and the Fifth Circuit did not even reach the more sensitive issues of privacy."

Letten noted that Auster knew his threats would be conveyed outside of the therapy office because his therapists had warned others about his previous threats and told him they would do so again. And the way he made the threats, Letten said, "made it clear that this information was not intended to be closely held. In the end, we were able to address a compelling public safety issue while the patient-therapist privilege remains intact."