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Evidence: Behavioral Health Professional-Client Privilege

Posted by Ted A. Schmidt | Jun 30, 2020 | 0 Comments

Evidence: Behavioral Health Professional-Client Privilege

In Re MH 2019-004895, No. 1 CA-MH 19-0065 (App. Div. I, June 23, 2020) (J. Brown)


Appellant received outpatient mental health services at a behavioral center where her clinical liaison—a professional counselor licensed by the Arizona Board of Behavioral Health Examiners met with her six times and spoke with her on the phone an equal number of times. While the counselor testified she did not provide appellant therapy or counselling she did provide her services including making assessments of her condition. A hearing was held in Maricopa County Superior Court resulting in a court order that appellant undergo treatment in a combined inpatient and outpatient treatment program until no longer persistently or acutely disabled, for a maximum of 365 days. Over appellant's objection, the counsellor was permitted to testify at the hearing that she observed appellant to be in a “highly agitative state,” violent to staff and at one point when taken to the emergency department she “presented in a catatonic state.” This appeal followed and the Arizona Court of Appeals vacated the superior court's order finding the behavioral health professional-client privilege had been violated.

A.R.S. §32-3283 provides in part: “A [behavioral health professional] licensee  shall not voluntarily or involuntarily divulge information that is received by reason of the confidential nature of the behavioral  health professional-client relationship.” This privilege is broader than other privileges which only protect communications. The behavioral health professional-client  privilege  protects “information” received by virtue of the professional relationship and it does not require the information be obtained through counselling or therapy. The mere fact that a relationship was established between appellant and the counselor and that information and observations were made as a result of that relationship was enough to protect the information from disclosure absent the client/appellant's consent.  

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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