In Re: MH2023-004502, No. 1 CA-MH 23-0085 (App. Div. I, October 31, 2024) (J.Jacobs) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/No.%201%20CA-MH%2023-0085%20IN%20RE%20MH2023-004502.pdf

EXAMINATION OF MENTAL HEALTH PATIENT BY BEHAVIORAL HEALTH SOCIAL WORKER WHICH INCLUDED TREATMENT IS PRIVILEGED UNDER A.R.S. § 32-3283(A) & A.R.S. § 32-3283(A) AND CAN ONLY BE WAIVED BY PATIENT/SOCIAL WORKER EXAMINING PATIENT TO SUPPORT MENTAL HEALTH TREATMENT CANNOT ALSO SERVE AS AN “AQUAINTANCE” WITNESS

A.R., a mental health patient appeals an ordered to undergo mandatory mental health treatment by the Maricopa County Superior Court under A.R.S. § 36-539(B). The Arizona Court of Appeals vacated the superior court order.

M.G., a licensed master social worker was asked to examine A.R. based upon behavior suggesting a mental health problem.  M.G. interviewed, observed, examined and assisted A.R. to “enhance or restore [his] ability to function.”  At the outset M.G. told A.R. that “their consultation would not necessarily remain confidential, as it could give rise to a petition for court-ordered treatment, and that M.G. might appear in court to discuss it.” 

The court of appeals noted application of the Behavioral Health Social Worker privilege raised in this case was an issue of first impression, and held:

Section 3283 bars licensees from divulging information

received from patients such as A.R. where the information is “received by

reason of the confidential nature of the behavioral health professional-client

relationship.” A.R.S. § 32-3283(A). To determine whether the information

M.G. testified to concerning A.R. was thus received, we look to the

definitions of closely related terms in A.R.S. § 32-3251.

These definitions leave no room for doubt that M.G., a

licensed social worker, stood in a confidential relationship with A.R. The

practice of behavioral health is confidential, because “client” in A.R.S. § 32-

3283(A) includes anyone receiving “behavioral health services.” A.R.S. §

32-3251(2), (9). And “the practice of behavioral health” means “the practice

of . . . social work.” A.R.S. § 32-3251(9). The “practice of social work”

includes the “application of social work theories, principles, methods, and

techniques to [a]ssist individuals . . . to . . . restore the ability to function

physically, socially, emotionally, mentally and economically.” A.R.S. §

32-3251(12)(b). It also includes “the application of social work theories,

principles, methods, and techniques to [t]reat mental, behavioral, and

emotional disorders.” A.R.S. § 32-3251(12)(a).

Because the statute provides that the Behavioral Health Professional privilege is “the same as between an attorney and a client,” (A.R.S. § 32-3283), the M.G.'s statement that the examination “might not be privileged or confidential” is of no consequence as only the patient can waive the privilege.

A second issue was whether M.G. could meet the “acquaintance witness” requirement of A.R.S. § 36-539(B) which had to be met to support the superior court's order.  This statute requires that two people acquainted with the patient must testify in support of the order.   The court of appeals found that “no person whose primary contact with the patient was to examine the patient during his or her commitment evaluation process may testify at the hearing as one of the required acquaintance witnesses.”