Arizona Supreme Court Clarifies Scope of the Behavioral Health Professional Privilege

By Claudia E. Stedman, Lilly M. Geiler, and Paul J. Giancola

The Arizona Supreme Court recently clarified the circumstances under which communications between licensed behavioral health professionals (BHPs) and their clients are confidential under A.R.S. § 32-3283.¹ Understanding the redefined scope of this privilege is important for BHPs to ensure compliance with mandatory confidentiality obligations.

In In re: MH2023-004502, a licensed social worker performed a level of care (LOC) assessment on a person, one of the early steps for involuntary treatment of a mental disability in Arizona. The social worker testified at the individual’s hearing for petition for court ordered treatment. The person objected, arguing A.R.S. § 32-3283 prohibited the social worker from testifying about their communications because they had formed a BHP-client relationship.

The Court held that communications between BHPs and individuals that they treat are privileged only under the following circumstances:

(1) there is a behavioral health professional-client relationship,

(2) the communication was made to secure or provide behavioral health services,

(3) the communication was made in confidence, and

(4) the communication was treated as confidential.

More specifically, the Court explained that whether a BHP-client relationship exists depends on “the nature of the work performed and . . . the circumstances under which the confidences were divulged.” The person consulting the BHP must have an objectively reasonable belief that he or she is approaching the BHP in a professional capacity and with the intent of securing behavioral health services. Whether such a belief is objectively reasonable depends on “(1) the nature of the interaction or services provided; (2) the length of the interaction; and (3) any pre-discussion warnings.”

Applying these parameters, the Court in In re: MH2023-004502 found the communications between the licensed social worker and the individual on whom she performed the LOC assessment to not be privileged under A.R.S. § 32-3283. The Court reasoned that it seemed unlikely that the person evaluated actually intended to obtain behavioral health services from the social worker because the assessment was involuntary. Further, even if the person truly believed she was seeking out behavioral health services, this belief would not have been objectively reasonable because the individual and the social worker interacted only once, their conversation was general and brief, and the social worker warned that their conversation would not be confidential. The Court determined that there was no BHP-client relationship between the individual and social worker. Therefore, their communications were not privileged.

The Court’s opinion in In re: MH2023-004502 serves to clarify the scope of one of Arizona’s many privacy laws regarding information that individuals may share with BHPs. BHPs asked to divulge their communications with individuals who may be their “clients” should consult compliance counsel to determine if those communications are privileged or confidential under A.R.S. § 32-3283, or other applicable state and federal laws.