IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
IN RE: MH2020-004882
No. 1 CA-MH 20-0090
1 CA-MH 20-0098
(Consolidated)
FILED 7-13-2021
Appeal from the Superior Court in Maricopa County
No. MH2020-004882
MH2020-005526
The Honorable Aryeh D. Schwartz, Judge
AFFIRMED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Anne C. Longo, Tawn T. Tao
Counsel for Appellee
Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellants
OPINION
Judge Maria Elena Cruz delivered the opinion of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.
IN RE: MH 2020-004882
Opinion of the Court
C R U Z, Judge:
¶1 In this consolidated appeal, two mental health patients argue
the superior court erred by allowing testimony by clinical social workers
who assessed them in the emergency room and concluded each needed to
be evaluated by physicians for possible harm to themselves or others. The
patients argue the social workers testified in violation of a statutory
privilege that accords information “received by reason of the confidential
nature of the behavioral health professional-client relationship.” Arizona
Revised Statutes (“A.R.S.”) section 32-3283(A). We hold that a clinical social
worker does not provide “behavioral health services” where he or she
interacts with a patient only once to assess whether the patient should be
evaluated as a risk of harm to themselves or others and where the social
worker has warned the patient at the outset that any statements the patient
makes about harming self or others will not remain confidential.
FACTUAL AND PROCEDURAL HISTORY
I. Appellant J.H., MH 20-0090
¶2 F.M. is a licensed clinical social worker employed at a
hospital, where he performs “crisis intervention” in the emergency room
for individuals who have threatened self-harm. In this role, F.M. assesses
whether a patient can be safely discharged home or must be admitted to the
hospital for further evaluation by a psychiatrist.
¶3 J.H. went to the hospital for chest pains, and while in the
emergency room, he made statements about harming himself. A nurse
notified F.M., who interviewed J.H. to determine whether he was suicidal
and “oriented to person, place, time.” F.M. warned J.H. that the
confidentiality of their conversation had limits and told him that if he made
statements about harming himself or others, F.M. would be required to
report it “to the appropriate authorities.”
¶4 J.H. told F.M. that he felt “unstable” and had thought about
cutting his wrists. F.M. asked J.H. if he had ever had these thoughts before,
and J.H. stated he had attempted suicide twice before. F.M. asked J.H. if he
was taking his prescribed mental health medications, and J.H. said he was
not. Based on these statements, F.M. deemed it unsafe to discharge J.H.
without a psychiatric evaluation. When he told J.H. that he would not be
allowed to leave the hospital, given that he was at high risk for suicide, J.H.
responded by yelling, cursing, and threatening F.M. J.H. was admitted and
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IN RE: MH 2020-004882
Opinion of the Court
evaluated, and the evaluating physicians opined that he required inpatient
and outpatient treatment.
¶5 At the evidentiary hearing on the petition for court-ordered
treatment, F.M. was called to testify as one of the two required acquaintance
witnesses. See A.R.S. § 36-539(B). J.H. objected, arguing he and F.M. had a
confidential behavioral health professional-client relationship. After voir
dire of F.M., the superior court found a confidential behavioral health
professional-client relationship did not exist, and it permitted F.M. to
testify.
¶6 After hearing the testimony of F.M. and J.H.’s grandfather
and reviewing affidavits from the evaluating physicians, the court found
by clear and convincing evidence that J.H. “is suffering from a mental
disorder and, as a result, is persistently or acutely disabled, is a danger to
self and is in need of treatment and is either unwilling or unable to accept
voluntary treatment.” The court ordered J.H. to undergo combined
inpatient and outpatient treatment until he was no longer persistently or
acutely disabled, for a maximum of 365 days. J.H. timely appealed the
treatment order.
II. Appellant M.P., MH 20-0098
¶7 W.G. is a licensed clinical social worker employed at a
hospital. M.P. presented at that hospital’s emergency room with psychosis,
and W.G. spoke with her there. W.G. told M.P. that she would be asking
questions to determine if there was a risk M.P. might harm herself or others,
and that M.P.’s statements in response to those questions would not be as
confidential. W.G. expressly told M.P. that her statements could be used in
a petition for court-ordered treatment and at a hearing related to such a
petition.
¶8 W.G. noted that M.P. appeared to be very agitated, and M.P.
said she was experiencing “audio from the outside,” which caused her to
think about harming herself and suicide. W.G. tried to ask M.P. about her
mental health history, but M.P. was fixated on the “audio” and continued
to say that “she didn’t want to be here” anymore and that it “wasn’t worth
it to live.” W.G. told M.P. that she required mental health treatment, but
M.P. refused to consent to treatment. M.P. stated she had gone to a
psychiatric hospital before and did not want to return because “they lied”
to her. She also said she stopped taking her psychiatric medications
because they did not work.
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IN RE: MH 2020-004882
Opinion of the Court
¶9 After evaluating M.P., two physicians concluded she required
involuntary inpatient treatment and intensive case management until she
was stable enough for outpatient treatment. A petition for court-ordered
treatment was filed.
¶10 During the evidentiary hearing that followed, M.P. objected
to W.G.’s testifying as an acquaintance witness, arguing she had a
confidential behavioral health professional-client relationship with W.G.
After voir dire, the court found a confidential behavioral health
professional-client relationship did not exist and allowed W.G. to testify.
After hearing the testimony of W.G. and M.P.’s mother and reviewing the
evaluating physicians’ affidavits, the court found by clear and convincing
evidence that M.P. “is suffering from a mental disorder and, as a result, is
persistently or acutely disabled, is in need of treatment and is either
unwilling or unable to accept voluntary treatment.” The court ordered M.P.
to undergo combined inpatient and outpatient treatment until she was no
longer persistently or acutely disabled, for a maximum of 365 days. M.P.
timely appealed the treatment order.
¶11 We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1)
and 36-546.01.
DISCUSSION
¶12 Appellants argue that the two licensed clinical social workers
testified in violation of A.R.S. § 32-3283, which establishes a privilege that,
with certain exceptions, precludes a licensee from disclosing information
received from a client. Appellants contend their treatment orders must be
vacated because, absent the social workers’ testimony, the State did not
present both of the two acquaintance witnesses required by A.R.S. § 36-
539(B). “The scope of the behavioral health professional-client privilege is
a question of law we review de novo.” In re MH2019-004895, 249 Ariz. 283,
286, ¶ 6 (App. 2020). We review issues of statutory interpretation de novo,
but we view the facts in the light most favorable to upholding the superior
court’s judgment and will not set aside its findings unless clearly erroneous.
In re MH 2001-001139, 203 Ariz. 351, 353, ¶ 8 (App. 2002); In re MH 2008-
002596, 223 Ariz. 32, 35, ¶ 12 (App. 2009).
¶13 Section 32-3283(A) limits disclosure by a licensed behavioral
health professional, including a clinical social worker licensed pursuant to
A.R.S. § 32-3293, of certain information received from a “client.” Under 32-
3283(A):
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IN RE: MH 2020-004882
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The confidential relationship between a client and a licensee,
including a temporary licensee, is the same as between an
attorney and a client. Unless a client waives this privilege in
writing or in court testimony, a licensee shall not voluntarily
or involuntarily divulge information that is received by
reason of the confidential nature of the behavioral health
professional-client relationship.
A.R.S. § 32-3283(A).
¶14 Section 32-3251(2) defines client as a “patient who receives
behavioral health services from a person licensed pursuant to this chapter.”
“Practice of behavioral health” includes “professional counseling,” and
“[p]ractice of professional counseling” refers to “the professional
application of mental health, psychological and human development
theories, principles and techniques to:” (a) “[f]acilitate human development
and adjustment throughout the human life span”; (b) “[a]ssess and facilitate
career development”; (c) “[t]reat interpersonal relationship issues and
nervous, mental and emotional disorders that are cognitive, affective or
behavioral”; (d) “[m]anage symptoms of mental illness”; and (e) “[a]ssess,
appraise, evaluate, diagnose and treat individuals, couples, families and
groups through the use of psychotherapy.” A.R.S. § 32-3251(8), (10).
“Psychotherapy” is defined as “a variety of treatment methods developing
out of generally accepted theories about human behavior and
development.” A.R.S. § 32-3251(14).
¶15 F.M. testified that he spoke with J.H. for only about fifteen to
twenty minutes and did not provide him any therapy or counseling.
Similarly, W.G. testified she spoke to M.P. only once, for about forty-five
minutes, and did not provide her with any counseling or psychotherapy,
which were not part of her job. Both clinical social workers testified they
spoke to Appellants in the emergency room only to determine whether they
posed a risk of harm to themselves or to others or required hospitalization
to prevent such harm from occurring.
¶16 Appellants, however, claim F.M. and W.G. provided
behavioral health services to them and formed a confidential relationship
with them during their interactions. Appellants cite MH2019-004895, which
held that because a professional mental health counselor had a confidential
relationship with the patient, the counselor should not have been permitted
to testify as an acquaintance witness. 249 Ariz. at 289, ¶¶ 17-18. The facts
of that case differ from those here, however. There, the witness was a
professional counselor assigned to the patient as a clinical liaison, who had
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Opinion of the Court
an on-going relationship with the patient and had spoken with her on about
twelve different occasions. Id. at 287, ¶¶ 2, 12. The counselor also admitted
she had a confidential relationship with the patient. Id. at ¶ 13.
¶17 In addition, there was in that case “[n]o testimony . . . showing
that [the patient] was informed that her . . . interaction with [the counselor],
or any prior interactions, fell outside the scope of a behavioral health
professional client relationship.” Id. Here, by contrast, the purpose of the
social workers’ conversations with J.H. and M.P. was to determine whether
either posed a risk of suicide, and F.M. and W.G. both made clear that any
statements they made about harming themselves would not remain
confidential. See id. at 286, ¶ 7 (“[T]he behavioral health professional-client
privilege prohibits testimony that falls ‘within the scope of the privilege.’”)
(quoting Bain v. Superior Court, 148 Ariz. 331, 334-36 (1986)). W.G. went so
far as to tell M.P. that the statements she made could be used in a petition
for treatment or as testimony in a hearing. Based on the pre-discussion
warnings the social workers gave J.H. and M.P, it would be unreasonable
for them to believe the social workers would keep confidential any
statements they made that revealed a risk of harm to themselves or others.
See In re Pima Cnty. Mental Health Case No. MH1717-1-85, 149 Ariz. 594, 596
(App. 1986); State v. Ortiz, 144 Ariz. 582, 583-84 (App. 1985).
¶18 Nothing in the record suggests that the interactions between
F.M. and W.G. and Appellants rose to the level of behavioral health services
that might create confidential behavioral health professional-client
relationships under A.R.S. § 32-3283. Accordingly, the superior court did
not err in allowing F.M. and W.G. to testify as acquaintance witnesses at the
hearings on the petitions for court-ordered treatment.
CONCLUSION
¶19 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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