This special action involves claims of privilege by a non-but-closely-associated-party.
A social worker counseled Bruno and his domestic partner, Abeyta, jointly – i.e., she saw them together and kept a single chart. The partner ended up suing her and the psychiatric hospital she sent him to. He named Abeyta as a witness. The social worker disclosed her records and noticed Abeyta’s deposition. Abeyta claimed the privilege and moved for protective order. The trial court denied it; the Court of Appeals accepted his special action and grants relief.
Abeyta had never expressly waived the privilege; that the partner had is irrelevant. The court reviews HIPAA and State behavioral health regulations, concluding that they do not authorize or permit the release of Abeyta’s records. The defense relied on a case (Hahmann 1981) in which a couple’s communications with a psychologist were not privileged against each other in their divorce/custody battle. But Abeyta and his partner weren’t suing each other.
(Some of those regulations involve “family” counseling. Normally this sort of thing would trigger at least a footnote but the court doesn’t mention it. One wonders which the court was more afraid of – complaints that it would even quibble about whether same-sex couples are families or complaints about an official pronouncement that they are.)
The defense also relied on high dudgeon, as litigants tend to do when an opponent’s witness will claim a privilege at cross-examination time. But the court says that questions about matters at issue could be asked “outside the context” of the counseling and points out that Abeyta might still do something to waive the privilege.
Unfortunately for the opinion, which is otherwise fairly unremarkable, the court messed up the Hahmann case. It indicates – three times, so its not just a typo – that Hahmann involved attorney-client privilege. While that opinion analogized to attorney-client privilege, it was a psychologist–patient case. The court may be right that it wasn’t a spotted-horse case – but not to know what sort of animal it was about is an embarrassment.