Ninth Circuit Refuses to Recognize ?Dangerous Patient? Exception to Federal Psychotherapist-Patient Testimonial Privilege

The Ninth Circuit of the U.S. Court of Appeals ruled that although therapists have a duty to warn authorities about patients? threats to inflict serious harm on others, this does not mean they may testify in subsequent federal court proceedings about these statements.  In this case, the defendant suggested during therapy sessions that he might injure FBI agents and other individuals.  The psychotherapist alerted law enforcement personnel and, after the psychotherapist testified at trial about the defendant?s threats, the defendant was convicted of threatening to murder federal agents. 

The Ninth Circuit held the psychotherapist?s testimony should not have been admitted because the defendant?s conversations with her were protected by the federal psychotherapist-patient testimonial privilege and refused to recognize a ?dangerous patient? exception to the federal psychotherapist-patient testimonial privilege.  The court determined that just because therapists have a duty to warn authorities about patients? threats does not mean they may testify in court proceedings about confidential statements made during therapy sessions.  The court reasoned that the urgency to act that creates a duty to warn will normally have subsided by the time the case is brought to trial.  The court concluded the protection of society would increase only slightly by allowing this testimony and it would not outweigh the harm done to the psychotherapist-patient relationship.  A dissenting opinion argued ?the social interest in assuring that the judge and jury know the whole truth greatly exceeds the value of preserving any remaining shreds of the confidential therapeutic relationship.?  The Ninth Circuit ruling is consistent with that of the Sixth Circuit but is contrary to that of the Tenth Circuit.  United States v. Chase, 340 F.3d 978 (9th Cir. 2003); 72(9) U.S. Law Week 1145-46 (Sept. 16, 2003).