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The 9th U.S. Circuit Court of Appeals on Friday ruled that psychiatrists can’t testify against patients who make dangerous or threatening confessions during therapy. Although psychiatrists are sometimes required to report incidents to authorities that could lead to violence, an en banc panel ruled that prosecutors couldn’t use testimony from doctors to help convict their patients. “On balance, we conclude that the gain from refusing to recognize a dangerous-patient exception to the psychotherapist-patient testimonial privilege in federal criminal trials outweighs the gain from recognizing the exception,” Judge Susan Graber wrote for the 8-3 majority. “Although incarceration is one way to eliminate a threat of imminent harm, in many cases treatment is a longer lasting and more effective solution. A criminal conviction with the help of a psychotherapist’s testimony is almost sure to spell the end of any patient’s willingness to undergo further treatment for mental health problems.” Joining Graber were Chief Judge Mary Schroeder, along with judges Harry Pregerson, Sidney Thomas, M. Margaret McKeown, William Fletcher, Raymond Fisher and Ronald Gould. Judge Andrew Kleinfeld penned the dissent, joined by judges Thomas Nelson and Richard Clifton. “The patient was understood by his psychotherapist to be past the point of seeking help that would prevent criminal action, so she felt it essential to warn his prospective victims and did so,” Kleinfeld wrote. “His therapeutic confidentiality was gone.” Kleinfeld also argued that the Supreme Court has spoken directly to the issue before the 9th Circuit — albeit in dicta. “The Supreme Court has said in the plainest English that in cases such as the one before us, ‘the privilege must give way,’” Kleinfeld wrote. “Artificial respiration of a privilege dead under Supreme Court language that speaks directly to it takes a miracle. I do not think the majority brings it off.” Oregon resident Steven Chase began receiving treatment from Kaiser Permanente psychiatrist Dr. Kay Dieter after grappling with depression and bouts of anger. He was eventually diagnosed with bipolar disorder. During one 1999 counseling session, Chase showed his doctor a day planner with various names, addresses and phone numbers, including those belonging to two FBI agents assigned to investigate claims made by Chase during an unrelated legal matter. He then told his doctor that he had homicidal thoughts. Eventually, Dieter became concerned enough to notify the FBI. Chase was arrested and faced a trial on two counts of threatening to murder FBI agents. One of the counts was based on things Chase had said to telephone operators while agents were on their way to his house. The other was based solely on comments Chase made during therapy sessions. Chase was acquitted on the second count, and because of that the 9th Circuit held that Dieter’s testimony was harmless error. The majority did note that its ruling doesn’t extend to proceedings in civil court over whether the patient should be committed to a hospital.

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