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When a mental health treatment provider is privy to threatening communications from a patient made in the course of therapy, and discharges his or her duty to warn, the threatening communications triggering that duty are not protected from disclosure under the psychologist-patient privilege. Such communications are not confidential as a matter of law and barring them from admission contravenes legislative intent.
In 1985, Randy Steven Kailey was charged with two counts of aggravated incest. After a jury trial, he was found guilty and ultimately sentenced to thirty-two years in the Sterling Correctional Facility ("Sterling") in Sterling, Colorado. In November 2012, Kailey met with Brian Willson, a psychologist candidate employed by the Colorado Department of Corrections ("DOC"), for a private therapy session at Sterling. At the outset of this therapy session, Willson reviewed an official DOC form with Kailey. This form provided that any statements Kailey made during the therapy session indicating that Kailey intended to harm himself or others would not be considered confidential and would be disclosed to the DOC. During his session, Kailey allegedly made several statements about witnesses who had testified against him during his trial. Willson considered these statements to constitute serious threats of violence. Pursuant to his duty to warn, Willson submitted an "Incident Report" to the DOC describing Kailey's therapy session and quoting several of Kailey's alleged statements. In explaining why he submitted this report, Willson testified as follows: "According to what . . . I understand as a duty to warn, and also what [the] DOC requires us to do, and the disclosure form, . . . anything that's perceived as a threat to the facility or to the public is not considered confidential and needs to be reported." The People subsequently charged Kailey with retaliation against a witness, a class-three felony, pursuant to section 18-8-706, C.R.S. (2013). According to the People, Willson's Incident Report and his testimony formed the basis, in large part, for this charge. Kailey moved to exclude Willson's testimony, contending that Kailey's statements to Willson were barred by the psychologist-patient privilege. After a hearing, the trial court issued an oral order granting Kailey's motion to exclude Willson's testimony. It found that the duty to warn statute serves different purposes than the psychologist-patient privilege, reasoning that the duty to warn is designed to enhance public safety, whereas the psychologist-patient privilege encourages patients to be candid with their therapists. Accordingly, the trial court found that even if a mental health treatment provider warns threatened individuals and notifies law enforcement regarding threatening statements made in the course of a therapy session, the testimonial privilege remains intact.
Did the trial court err in excluding Willson’s testimony?
The Colorado Revised Statutes contain a comprehensive scheme regulating the provision of mental health services in Colorado. When we read the plain language of that statutory scheme in harmony with the duty to warn, we conclude that threatening statements triggering the duty are not confidential as a matter of law. Section 12-43-218(1) provides a general rule that mental health treatment providers "shall not disclose, without the consent of the client, any confidential communications made by the client . . . in the course of professional employment." Significantly, however, the statute contains an exception to this general rule, stating that nothing in section 12-43-218 "shall be deemed to prohibit any other disclosures required by law." § 12-43-218(5). Additionally, Colorado requires mental health treatment providers to inform patients that a patient's communications to the provider are "legally confidential . . . except as provided in section 12-43-218 and except for certain legal exceptions that will be identified" by treatment providers. § 12-43-214(1)(d)(IV). The duty to warn constitutes a "disclosure required by law" under section 12-43-218(5), and a "legal exception" to the confidentiality requirement under section 12-43-214(1)(d)(IV). As such, threatening statements that trigger the duty to warn are never confidential as a matter of law. Further, that disclosures made pursuant to the duty to warn are not confidential is fatal to Kailey's privilege claim, because confidentiality is required in order for the psychologist-patient privilege to attach in the first place. Additionally, in establishing the federal psychologist-patient privilege, the United States Supreme Court unambiguously limited the privilege to circumstances in which the patient's statements were made in confidence, holding that the "privilege covers confidential communications made to licensed psychiatrists and psychologists." Because patients are presumed to know that treatment providers are required to disclose certain threatening statements, patients have no expectation that serious threats of imminent violence against specific individuals will be considered confidential.
The duty to warn was designed to fill a kind of "gap" in public safety. Specifically, it requires mental health treatment providers to affirmatively act to warn potential victims of violence when patients may not be dangerous enough to be involuntarily committed at the precise moment a threat is made in a psychologist's office, but who may well be extremely dangerous. Allowing psychologists to testify after warning is a logical extension of the duty to warn. Such testimony ensures that victims of imminent threats can obtain protection, which is particularly important where the state has decided to prosecute the patient for making criminalized statements, or where the victim has attempted to protect him- or herself by seeking a protective order. Indeed, the testimony of the mental health treatment provider may represent a victim's best hope to obtain real protection from potentially violent mentally ill individuals. As the facts of this case demonstrate, a psychologist or psychiatrist may be the only person who hears the threat directly from the patient, and thus is the only witness able to testify regarding the nature and extent of the threat, for example, in a hearing to obtain a protective order. The application of the privilege would accordingly thwart the objective of the duty to warn, which is to allow victims the opportunity to protect themselves. The legislature simply did not intend to hamstring victims in obtaining legal protection from such serious threats.