Patient Privilege and Dangerousness: Should Duty to Warn Affect Confidentiality?

Alisa R. Gutman; Robert L. Sadoff

Physician Testimony on a Patient's Possession of Cyanide Admitted Erroneously Based on a Dangerous-Patient Exception to Privilege

In United States v. Ghane, 673 F.3d 771 (8th Cir. 2012), the United States Court of Appeals for the Eighth Circuit considered whether the U.S. District Court for the Western District of Missouri erred in denying the defense's motion to dismiss and its motion in limine. On appeal, the defense argued first that the chemical weapon statute under which Hessam Ghane was convicted is unconstitutionally vague and second that psychotherapist-patient privilege should have excluded clinical testimony by a physician assistant and psychiatrist involved in his psychiatric hospitalization at the time of his offense. Despite finding that the district court erred in applying a dangerous-patient exception to testimony by a psychiatrist, the appeals court upheld his sentence, affirming that admission of the psychiatrist's testimony resulted in harmless error and that there was sufficient evidence without the psychiatrist's testimony to have convicted Mr. Ghane.

Facts of the Case

Hessam Ghane had a significant history of mental illness, including multiple inpatient psychiatric hospitalizations. On February 4, 2003, he called a suicide crisis hotline, and police were dispatched to his home. In response to his request, police then transported him to Overland Park Regional Medical Center (OPRMC), where he was seen in the emergency department for intake by Gleb Gluhovsky, a physician assistant. Mr. Ghane, in the process of seeking admission for psychiatric inpatient hospitalization, reported to Mr. Gluhovsky that he had suicidal ideation, with a possible plan to ingest potassium cyanide, which he had in his house. Mr. Gluhovsky subsequently obtained permission from the hospital's risk management office to contact the police because of the potential for public harm. A detective then obtained written permission from Mr. Ghane to search his apartment, resulting in the seizure of potassium cyanide.

Mr. Ghane was admitted to the hospital's psychiatric ward and placed under the care of Dr. Howard Houghton. On his initial psychiatric examination, Mr. Ghane discussed with Dr. Houghton that he had both suicidal thoughts and thoughts of harming others and that he had access to chemicals. Mr. Ghane did not name any specific individuals, instead referring to people affiliated with the Corps of Engineers. Dr. Houghton, who had cared for Mr. Ghane on previous inpatient admissions, found him to be more paranoid, hostile, and irritable than in previous encounters. He sought counsel from his hospital's risk management office, which advised him to obtain consent from Mr. Ghane and report the threat to authorities.

After an initial trial resulted in a hung jury and a mistrial, a jury convicted Mr. Ghane of stockpiling, retaining, and possessing a chemical weapon. The U.S. District Court for the Western District of Missouri denied his pretrial motion to dismiss and his motion in limine. He appealed to the Eighth Circuit, arguing against the constitutionality of the chemical weapons statute and arguing that the district court erred in admitting testimony by Mr. Gluhovsky and Dr. Houghton.

Ruling and Reasoning

In his first argument, Mr. Ghane cited vagueness and overbreadth of the chemical weapon statute that he was charged with violating. The statute bars stockpiling, retaining, or possessing chemical weapons and states that possession of such substances for peaceful purposes is not prohibited. He argued that not only are the terms chemical weapon and toxic chemical vague as defined in the statute, but the term peaceful purpose is also unclear. At trial, he argued that suicide should be considered a peaceful purpose. To this point, the court of appeals agreed with the district court and argued that the wording of the statute is not unconstitutionally broad and that the language used in the statute provides adequate notice of what is and is not considered a chemical weapon.

Mr. Ghane next argued that the district court erred in denying his motion in limine by admitting the testimony of Mr. Gluhovsky and Dr. Houghton. The court of appeals ruled on this argument by first reviewing standards for privilege and then addressing each clinician encounter as to whether privilege applied. The court's analysis pointed out that testimonial privilege is the exception and not the rule and that the privilege asserted by Federal Rule of Evidence 501 is therefore distinct and not to be generalized. One such evidentiary exception was recognized by the Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996), holding that confidential communications between a licensed psychotherapist and his patient in the course of diagnosis and treatment are protected, to facilitate and ensure that meaningful treatment can occur. In this case, Mr. Ghane argued that the psychotherapist-patient privilege as defined by the Court in Jaffee applies to testimony by both the physician assistant who performed the intake examination of Mr. Ghane in the emergency room and to the psychiatrist who treated him in the psychiatric unit.

The court of appeals agreed with the district court in admitting testimony by Mr. Gluhovsky, asserting that the clinical encounter with Mr. Gluhovsky was not protected by this privilege, because he was not a licensed psychotherapist and he was not providing either diagnosis or treatment for Mr. Ghane; therefore, Jaffee did not apply. However, the court of appeals believed that the district court erred in applying a dangerousness exception and therefore in admitting the testimony of Dr. Houghton, although they found the error to be harmless. In their analysis, the court cited the Sixth Circuit's decision in United States v. Hayes, 227 F.3d 578 (6th Cir. 2000), which rejects a dangerous-patient exception to psychotherapist-patient privilege in criminal proceedings. They stated further that individual states' standard of care for duty to protect should not be tied to or confused with an individual's right to invoke privilege in criminal proceedings with regard to communication in the context of a psychotherapist-patient relationship. In their decision, the court of appeals pointed out that the consent obtained by Dr. Houghton was insufficient for the purpose of waiving privilege for criminal proceedings. Such consent must clarify the consequences of disclosure for subsequent criminal prosecution to meet the standards for a knowing and intelligent waiver.

Discussion

Although it is certainly of psychiatric (and philosophical) interest to debate whether suicide is, indeed, a peaceful purpose, we found that the findings related to privilege in this case had the most relevance for forensic psychiatric practice. In this ruling, the court clarifies the important distinction between a clinician's duty to report and compulsion to testify. As psychiatrists, it is imperative to evaluate for dangerousness in our patients. Although it is the psychiatrist's responsibility to report in cases of specific threats, the therapeutic relationship can still be maintained with a patient's ability to retain therapeutic privilege in legal proceedings.

From a treating psychiatrist's perspective, we found it troubling that the questions of decision-making capacity and informed consent were not addressed more fully by the clinicians involved. The court of appeals noted that the consent obtained by the physician to contact authorities was not sufficient and did not equate with waiving privilege. Given that the standard for a knowing and intelligent waiver includes awareness of the nature of the right and the consequences of the decision to abandon the right, it is unlikely that most non-forensically trained clinicians would be in a position to obtain informed consent in such a situation. The clinician should be familiar with the specifics of informed consent in such complicated cases.