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.”
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