The Pennsylvania Superior Court has decided the case of Commonwealth v. Cook, holding that an incriminating statement made to another patient of an inpatient mental health treatment center which was overheard by a security guard is not covered by the psychotherapist privilege. The Superior Court found the statement admissible despite the fact that the guard had a minor role in providing treatment to patients and the fact that the defendant had been involuntarily committed to the facility.

The Facts of Cook

In Cook, the Pennsylvania State Police began investigating a murder in 1991. In 2016, the defendant was charged with the murder. Specifically, prosecutors filed charges for criminal homicide and robbery. Suspecting that the defense would likely object to the admissibility of certain statements the defendant had allegedly made, the Commonwealth filed a motion in limine prior to trial asking the trial court to find that those statement would be admissible at trial. The statements had allegedly been made while the defendant was involuntarily committed to a mental health treatment center in Minnesota. During that commitment, the defendant allegedly made an incriminating statement to another patient which was overheard by a Security Counselor who worked for the facility. The defendant argued that the statement was privileged under 42 Pa.C.S.A. Section 5944, which governs confidential communications to psychiatrists and therapists.

The trial court issued an order finding that the incriminating statement, in which the defendant admitted to committing a murder in Philadelphia, was privileged and could not be introduced into evidence at trial. The Commonwealth filed a motion for reconsideration, arguing that the statements were not confidential because they were made to a fellow patient rather than a psychologist or psychiatrist and because the Security Counselor had simply overheard the defendant in a public setting. Therefore, the Commonwealth argued the the statements were not made in the course of treatment by a treatment provider.

The trial court held a hearing on the motion to reconsider at which the security counselor testified. The counselor testified that he was basically a security guard and that his job was to ensure the safety and security of the facility. He would count patients for their medications and meals and make sure that they were taking their medication. He would also document any unusual patient behavior and let the nurses know. Notably, he did not administer medications, he did not prescribe medications, and he would only be present for group meetings and interactions for security purposes. He was not involved in making treatment recommendations.

The security counselor heard the statements when the defendant was in the facility’s library. This was not part of a treatment session, and treatment was not conducted in the library. There were no doctors or nurses present at the time. The defendant made the statement to the other patient while they were sitting together on the couch in the library, and the security counselor was a few feet away. The defendant knew that the security counselor was present. The security counselor visibly took notes on the exchange.

Following the hearing, the trial court re-entered its original order, finding that the testimony was privileged. The Commonwealth appealed to the Pennsylvania Superior Court.

The Pennsylvania Superior Court’s Opinion

The Superior Court reversed the trial court’s order on appeal and found that the incriminating statement is admissible. The court noted that evidentiary privileges are limited and must be strictly construed. The psychotherapist privilege applies only under limited circumstances.

Does Pennsylvania have a psychotherapist privilege?

The 42 Pa.C.S.A. Section 5944 provides:

§ 5944. Confidential communications to psychiatrists or licensed psychologists

No psychiatrist or person who has been licensed . . . to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

Can a therapist testify about things that you told them in therapy?

The psychotherapist privilege acts to bar testimony by the treating psychologist or psychiatrist as well as disclosure of certain records. The privilege does not always apply, however. While documents prepared during the course of treatment may sometimes fall within the privilege, the privilege applies only to confidential communications between psychiatrists or psychologists and their patients/clients that were made in the court of treatment. Not all records and documents regarding mental health treatment are protected. The privilege does not extend to reports, documents, or statements that do not contain communications made by the patient to the therapist.

The privilege extends to members of the treatment team, but to be privileged, a statement must be made by the client “in confidence” to a member of the treatment team and '“in the course of facilitating the treatment plan.”

Here, the defendant made his statement in a private conversation to a fellow patient during a recreational time in the library. It was not part of a therapy session, and the statement was not made to a member of the treatment team. Thus, the statements were not confidential or made in the course of treatment. Instead, they were statements made during a private conversation between the defendant and a third-party which were overheard by a security guard. Therefore, the statements are not protected by the privilege and can be used against the defendant at trial.

When does the psychotherapist privilege not apply?

As the court’s opinion illustrates, there are a number of situations in which the privilege may not apply. The privilege may not apply if:

• The statement is not confidential - meaning it is made to someone other than the therapist.

• The statement is made outside of a treatment setting where other people can hear it and no steps have been taken to keep the conversation private.

• The statement is not made during the course of treatment.

This opinion unfortunately fails to reflect that the guard does appear to have been involved in treatment both by documenting patient behaviors for the nurses and that the defendant was committed to the facility involuntarily. Given that he was receiving involuntary, inpatient treatment, the court should have found that any statement made while he was there was privileged as it was all part of his treatment. Nonetheless, this opinion, like many, illustrates that it is much better to not make incriminating statements regarding serious crimes as courts are extremely resultant to prohibit the admission of such statements at trial. When the police tell you that anything you say can be used against you in court, they mean it.

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