This employment case raised several issues, addressed in this opinion and a memo, but only a point about the psychologist-patient privilege is of much general interest.

Mr. and Mrs. McLeod owned Structural I, a framing contractor. They wanted to transition out of running the business. Their counselor – a registered social worker they were seeing about various issues – suggested that they hire D’Amico for a few years as a “bridge CEO.” They did, then feuded with and fired her; she sued, won at trial, and Structural I appealed.

(The main lesson here is not to rely on your social worker to advise you on who should run your construction company.)

The counselor testified at trial about her sessions with the McLeods. Structural argued that this violated the psychologist-patient privilege. (D’Amico didn’t argue that the counselor didn’t qualify since she wasn’t a psychologist.) The Court of Appeals rules that Structural doesn’t have standing to raise the issue because the privilege belongs the McLeods.

Which raises the question of what happened here. Under the statute, the psychologist-patient privilege is like the lawyer-client privilege: the psychologist can’t divulge the info without consent. But evidently this counselor did. Or did she think she had consent because the lawyer for the McLeod’s company was at her deposition, for example, and didn’t object? Does that make a difference? Did that lawyer object – and if not, why not? Why didn’t the McLeods write the counselor early on, instructing her not to say anything?

Too many unknowns to draw any conclusions. But it sounds like a problem that should have been nipped in the bud rather than after it had grown into a problem at trial/appeal.

(link to opinion)