EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, February 1, 2012

Call The Doctor: Military Court Finds Psychotherapist Privilege Inapplicable To Statements To Doctor At Mental Health Department

Military Rule of Evidence 513(a) provides that

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

And, as the recent opinion of the U.S. Navy–Marine Corps Court of Criminal Appeals in United States v. McGuire, 2012 WL 267935 (N.M.Ct.Crim.App. 2012), makes clear, the Military Rules of Evidence only contain this psychotherapist-patient privilege and do not contain a physician-patient privilege.

In McGuire, Stephen McGuire was court-martialed as a result of
the relationship the appellant, an officer and helicopter pilot, fostered with his unit co-worker, Corporal K, a helicopter crew chief....The appellant, Corporal K, and Lance Corporal W all went on an overnight social camping trip at a wildlife park. Because the appellant's enlisted companions were under the legal drinking age, the appellant purchased alcoholic drinks for them prior to the trip....Thereafter, they drank alcohol and conversed around a campfire before falling asleep. During the trip, the appellant refused to honor the differences in rank, insisting his enlisted companions call him by his first name.
Weeks after camping together, the appellant joined Corporal K and his wife at a community hot tub in Corporal K's apartment complex. The appellant brought beer with him and the three drank alcoholic beverages together. Once the alcohol was consumed, they went into Corporal K's apartment, where the appellant and Corporal K drank large quantities of vodka and played video games together. The appellant arranged with Corporal K's wife to sleep in the living room because he felt unsafe walking home.
Corporal K's wife eventually retired to the marital bedroom, leaving the appellant to sleep in the living room and Corporal K on the living room floor where he had passed out. Corporal K later awoke on the futon in his living room to his pants being pulled down and a hand on his genitals. Corporal K then got up, fell, and was picked up and placed on the futon face down. Corporal K then felt a pain in his anus as if something had penetrated it. Simultaneously, Corporal K heard the appellant say he was homosexual.


Corporal K reported the incident to his command and an investigation ensued into the appellant's alleged conduct. The appellant's commanding officer (CO) had the appellant brought in to his office, at which time the CO told him he would be transferred because of the allegations. The appellant then made self-injurious gestures to his wrist with his pocket knife and car keys at which point his CO confiscated them. The appellant cut himself, drawing blood. Because of the appellant's reaction and out of concern for his well-being, the CO and the executive officer personally drove the appellant to the nearest Naval Hospital emergency room (ER). They arrived at the ER after the normal working hours of the hospital's mental health department.

At the ER,

the appellant was seen by Lieutenant (LT) B, the duty doctor. As part of his normal duties as an ER doctor, LT B conducted a physical examination and a mental health screening examination to determine whether he should refer the appellant to mental health. During the course of the examination, the appellant made admissions to LT B concerning the alleged offenses. LT B was a general medical officer, not a psychiatrist, psychologist, psychotherapist, or clinical social worker.

This last fact proved fatal to McGuire's appeal, in which he claimed that the statements that he made to LT B were covered by psychotherapist-patient privilege under Military Rule of Evidence 513(a). According to the court,

Here, the appellant enjoys no privilege under MIL. R. EVID. 513 because LT B was not a psychotherapist or an assistant to a psychotherapist, and the appellant was not laboring under the mistaken belief that LT B was such. LT B was the duty ER doctor. He was not directed by, assigned to, or supervised by any psychotherapist. LT B conducted a short mental health screening examination of the appellant to determine whether his referral to the mental health department was required. It was standard practice for the duty ER doctor to conduct the examination when any patient appeared for evaluation.



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Your headline is a bit misleading. McGuire was brought to the emergency room, not the mental health department. The ER doctor merely conducted a routine mental health screening to determine whether McGuire should be referred for mental health treatment. See page 3 of the opinion.

Posted by: Cloudesley Shovell | Feb 2, 2012 4:51:13 AM

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