Legal Commentary

The psychotherapist-patient privilege

By Tom Kirkendall

Gosh, as if Paul the psychotherapist, Gabe Byrne's character in the new HBO series, In Treatment, didn't have enough to worry about.

The Fifth Circuit Court of Appeals has just issued this interesting opinion on the psychotherapist-patient privilege in the case of former Austin police officer, John Auster (H/T Robert Loblaw).

Auster suffers from paranoia, anger, and depression, so the stress of the impending termination of his worker?s comp benefits was not exactly conducive to improvement of those conditions. Auster proceeded to tell two of his therapists that he was prepared to undertake a campaign of violence if his benefits were terminated. Inasmuch as the therapists had a duty under state law to report the threats, the U.S. Attorney's office indicted Auster for extortion.

On a defense motion to suppress Auster's threatening statements, the District Court threw out Auster?s threats on the grounds that they were protected by the psychotherapist-patient privilege and not admissible at trial. The government appealed and the Fifth Circuit reversed, reasoning that Auster knew that his therapists had to report the threats and so he had no expectation that the threats would remain confidential. Accordingly, the Fifth Circuit concluded that such threats are not privileged. As Loblaw points out, there is now a split among the circuit courts over the the psychotherapist-patient privilege, with the Fifth joining the Tenth Circuit in not recognizing the privilege, while the Sixth and Ninth Circuits recognize the privilege.

Full post as published by Houston's Clear Thinkers on February 13, 2008 (boomark / email).