psychologist-patient privilege in Colorado

2025The psychologist-patient privilege assures “a victim of a sexual assault that all records of any treatment will remain confidential unless otherwise directed by the victim.” People v. Wittrein, 221 P.3d 1076, 1083 (Colo. 2009) (quoting People v. Sisneros, 55 P.3d 797, 800 (Colo. 2002)).

2014Privileges exist as a matter of policy; the sacrifice of relevant evidence is "warranted by the social importance of [the] interests and relationships that the privilege seeks to protect," Sisneros, 55 P.3d at 801 (internal quotation marks omitted), and confidentiality is inextricably tied to the policy rationale underlying the psychologist-patient privilege.

2013Court, 668 P.2d 3, 8 (Colo.1983) (the psychotherapist-patient privilege applies to "not only testimonial disclosures in court but also pretrial discovery of information within the seope of the privilege"); see also People v. Sisneros, 55 P.3d 797, 800 (Colo.2002) ("Once it attaches, the psychologist-patient privilege protects testimonial disclosures as well as pretrial discovery of files or records derived or created in the course of the treatment."); accord People v. Hogan, 114 P.3d 42, 54 (Colo.App.2004); cf. Petro-Lewis Corp. v. Dist.

1993In Clark v. District Court, 668 P.2d 3, 8 (Colo.1983), the purpose of the statutory physician-patient privilege was explained: The purpose of the physician-patient privilege is to enhance the effective diagnosis and treatment of illness by protecting the patient from the embarrassment and humiliation that might be caused by the physician’s disclosure of information imported to him by the patient during the course of a consultation for the purposes of medical treatment. *261 The same purpose applies to the psychologist-patient privilege.

2025The psychologist-patient privilege assures “a victim of a sexual assault that all records of any treatment will remain confidential unless otherwise directed by the victim.” People v. Wittrein, 221 P.3d 1076, 1083 (Colo. 2009) (quoting People v. Sisneros, 55 P.3d 797, 800 (Colo. 2002)).

2016See Wittrein , 221 P.3d at 1088 (Martinez, J., concurring in judgment only) (“[W]ithout eliminating the possibility that there may be times when the due process clause requires that the trial court conduct an in camera review of privileged records to determine whether they contain information that must be disclosed to the defense, in the absence of a particularized showing that the records contain exculpatory information not otherwise available to the defendant, in camera review is not required.”). ¶ 31 The district court did not err in ruling that the psychologist-patient privilege applied to

2025See People v. Kailey , 2014 CO 50, ¶ 12 , 333 P.3d 89, 93 (making 14 this point in the context of the psychologist-patient privilege, which also resides in section 13-90-107).

2025See People v. Kailey , 2014 CO 50, ¶ 12 , 333 P.3d 89, 93 (making 14 this point in the context of the psychologist-patient privilege, which also resides in section 13-90-107).

2015Court, 719 P.2d 722 , 726-27 (Colo.1986) (construing the psychologist-patient privilege to cover all files or records derived or created in the course of treatment). ¶ 13 Neither the trial court nor the parties disputed that the doctor's original prescription *133 order was a medical record created in the course of treatment that-absent a statutory exception or waiver-was covered by the physician-patient privilege.

2009Ct., 719 P.2d 722, 726-27 (Colo.1986)).

2016See Hendricks v. People, 10 P.3d 1231 , 1242 (Colo.2000) (section 16-8-103.6 involves the waiver of the "physician-patient privilege"); People v. Ullery, 984 P.2d 586 , 589-90 (Colo.1999) (section 16-8-103.6 pertains to the "physician/psychologist-patient privileges") (citation omitted); see also People v. Steen, 2014 CO 9 , ¶ 9, 318 P.3d 487 ("We will read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts."); People v. Cunefare, 102 P.3d 302 , 306 (Colo.2004) ("Because the language of [another] statute is substantially similar to

2016See Hendricks v. People , 10 P.3d 1231, 1242 (Colo. 2000) (section 16-8-103.6 involves the waiver of the “physician-patient privilege”); People v. Ullery , 984 P.2d 586, 589-90 (Colo. 1999) (section 16-8-103.6 pertains to the “physician/psychologist-patient privileges”) (citation omitted); see also People v. Steen , 2014 CO 9, ¶ 9 (“We will read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts.”); People v. Cunefare , 102 P.3d 302, 306 (Colo. 2004) (“Because the language of [another] statute is substantially similar to the langua

2016See Hendricks v. People, 10 P.3d 1231 , 1242 (Colo.2000) (section 16-8-103.6 involves the waiver of the "physician-patient privilege"); People v. Ullery, 984 P.2d 586 , 589-90 (Colo.1999) (section 16-8-103.6 pertains to the "physician/psychologist-patient privileges") (citation omitted); see also People v. Steen, 2014 CO 9 , ¶ 9, 318 P.3d 487 ("We will read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts."); People v. Cunefare, 102 P.3d 302 , 306 (Colo.2004) ("Because the language of [another] statute is substantially similar to

2016See Hendricks v. People , 10 P.3d 1231, 1242 (Colo. 2000) (section 16-8-103.6 involves the waiver of the “physician-patient privilege”); People v. Ullery , 984 P.2d 586, 589-90 (Colo. 1999) (section 16-8-103.6 pertains to the “physician/psychologist-patient privileges”) (citation omitted); see also People v. Steen , 2014 CO 9, ¶ 9 (“We will read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts.”); People v. Cunefare , 102 P.3d 302, 306 (Colo. 2004) (“Because the language of [another] statute is substantially similar to the langua

2014Specifically, the psychologist-patient privilege is designed to enhance the effective diagnosis and treatment of mental illness by preserving the "'atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears' necessary for effective psychotherapy." L.A.N., ¶ 14 (quoting Jaffee v. Redmond, 518 U.S. 1, 10 , 116 S.Ct. 1923 , 135 LEd.2d 337 (1996)). 1 16 The duty to warn constitutes a legislative recognition, however, that mental health treatment providers must simultaneously serve another-sometimes conflicting-

2014Specifically, the psychologist-patient privilege is designed to enhance the effective diagnosis and treatment of mental illness by preserving the "'atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears' necessary for effective psychotherapy." L.A.N., ¶ 14 (quoting Jaffee v. Redmond, 518 U.S. 1, 10 , 116 S.Ct. 1923 , 135 LEd.2d 337 (1996)). 1 16 The duty to warn constitutes a legislative recognition, however, that mental health treatment providers must simultaneously serve another-sometimes conflicting-

2016See, e.g., People v. Wittrein, 221 P.3d 1076 , 1083 (Colo.2009) ; People v. Sisneros, 55 P.3d 797 , 800 (Colo.2002) ; Dill v. People, 927 P.2d 1315 , 1322-25 (Colo.1996) ; People v. Dist.

2016See, e.g. , People v. Wittrein , 221 P.3d 1076, 1083 (Colo. 2009); People v. Sisneros , 55 P.3d 797, 800 (Colo. 2002); Dill v. People , 927 P.2d 1315, 1322-25 (Colo. 1996); People v. Dist.

2016See Hendricks v. People, 10 P.3d 1231 , 1242 (Colo.2000) (section 16-8-103.6 involves the waiver of the "physician-patient privilege"); People v. Ullery, 984 P.2d 586 , 589-90 (Colo.1999) (section 16-8-103.6 pertains to the "physician/psychologist-patient privileges") (citation omitted); see also People v. Steen, 2014 CO 9 , ¶ 9, 318 P.3d 487 ("We will read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts."); People v. Cunefare, 102 P.3d 302 , 306 (Colo.2004) ("Because the language of [another] statute is substantially similar to

2016See Hendricks v. People , 10 P.3d 1231, 1242 (Colo. 2000) (section 16-8-103.6 involves the waiver of the “physician-patient privilege”); People v. Ullery , 984 P.2d 586, 589-90 (Colo. 1999) (section 16-8-103.6 pertains to the “physician/psychologist-patient privileges”) (citation omitted); see also People v. Steen , 2014 CO 9, ¶ 9 (“We will read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts.”); People v. Cunefare , 102 P.3d 302, 306 (Colo. 2004) (“Because the language of [another] statute is substantially similar to the langua

2016See Hendricks v. People, 10 P.3d 1231 , 1242 (Colo.2000) (section 16-8-103.6 involves the waiver of the "physician-patient privilege"); People v. Ullery, 984 P.2d 586 , 589-90 (Colo.1999) (section 16-8-103.6 pertains to the "physician/psychologist-patient privileges") (citation omitted); see also People v. Steen, 2014 CO 9 , ¶ 9, 318 P.3d 487 ("We will read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts."); People v. Cunefare, 102 P.3d 302 , 306 (Colo.2004) ("Because the language of [another] statute is substantially similar to

2016See Hendricks v. People , 10 P.3d 1231, 1242 (Colo. 2000) (section 16-8-103.6 involves the waiver of the “physician-patient privilege”); People v. Ullery , 984 P.2d 586, 589-90 (Colo. 1999) (section 16-8-103.6 pertains to the “physician/psychologist-patient privileges”) (citation omitted); see also People v. Steen , 2014 CO 9, ¶ 9 (“We will read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts.”); People v. Cunefare , 102 P.3d 302, 306 (Colo. 2004) (“Because the language of [another] statute is substantially similar to the langua

2025The same holds true with respect to information obtained by a physician to assist a patient in pending litigation, see 17 B.B. v. People , 785 P.2d 132, 140 (Colo. 1990) (involving the psychologist-patient privilege, which we have equated to the physician-patient privilege), and a physician's testimony in a criminal case premised on a blood sample procured at the request of a police officer investigating the defendant's level of intoxication, see Hanlon v. Woodhouse , 160 P.2d 998, 1001 (Colo. 1945). ¶31 In contrast to Wolf , B.B. , and Hanlon , we landed on the other side of the privilege led

2025The same holds true with respect to information obtained by a physician to assist a patient in pending litigation, see 17 B.B. v. People , 785 P.2d 132, 140 (Colo. 1990) (involving the psychologist-patient privilege, which we have equated to the physician-patient privilege), and a physician's testimony in a criminal case premised on a blood sample procured at the request of a police officer investigating the defendant's level of intoxication, see Hanlon v. Woodhouse , 160 P.2d 998, 1001 (Colo. 1945). ¶31 In contrast to Wolf , B.B. , and Hanlon , we landed on the other side of the privilege led

2019See People v. Zapata, 2016 COA 75M , ¶ 30 (holding that the defendant was not entitled to discovery or an in camera review of statements protected by the psychologist-patient privilege), aff’d, 2018 CO 82 .

2016Court , 884 P.2d 286, 292-93 (Colo. 1994) (discussing waiver of psychologist-patient privilege where a defendant tenders his mental condition as an issue in a criminal case). ¶ 29 Further, the plain language of section 16-8.5-108 indicates that any such communications would be admissible only in Mr. it also refers to the psychologist-patient privilege, just as the former version of 16-8-103.6 did.

2015See Alcon v. Spicer, 113 P.3d 735 , 740-41 (Colo.2005) (examining the scope of the waiver of the physician-patient privilege "for all of [the plaintiff's medical] records and the past ten years of pharmaceutical records.").

2014See also Jaffee v. Redmond, 518 U.S. 1, 10 , 116 S.Ct. 1923 , 135 L.Ed.2d 337 (1996) ("[The psychotherapist-patient privilege is rooted in the 'imperative need for confidence and trust."" (quoting Trammel v. United States, 445 U.S. 40, 51 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980))); People v. Turner, 109 P.3d 639, 643 (Colo.2005) ("An assumption of confidentiality is essential to fostering trust between the parties to the relationship."). 140 Because the purpose of the privilege is to engender trust and effective mental health treatment through confidentiality, I agree with the majority that con

2014See Martin, 27 P.3d at 851-52 (noting that when interpreting a comprehensive legislative scheme, we constrile each provision to further the overarching legislative intent).

2014In contrast, in United States v. Auster, 517 F.3d 312, 317 (5th Cir.2008), the Fifth Circuit Court of Appeals held that the testimonial privilege does not bar mental health treatment providers from testifying about threatening statements that the providers disclosed pursuant to their duty to warn. 18 We conclude that the Fifth Circuit's approach best harmonizes the legislature's sometimes-competing objectives in establishing the psychologist-patient privilege and the duty to warn.

2014Because Kailey had no reasonable expectation that such statements would be treated as confidential, he cannot claim a psychologist-patient privilege with respect to such statements. [ 48 In reaching this conclusion, I am particularly persuaded by the Fifth Circuit's decision in United States v. Auster, 517 F.3d 312 (5th Cir.2008).

2014See also Jaffee v. Redmond, 518 U.S. 1, 10 , 116 S.Ct. 1923 , 135 L.Ed.2d 337 (1996) ("[The psychotherapist-patient privilege is rooted in the 'imperative need for confidence and trust."" (quoting Trammel v. United States, 445 U.S. 40, 51 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980))); People v. Turner, 109 P.3d 639, 643 (Colo.2005) ("An assumption of confidentiality is essential to fostering trust between the parties to the relationship."). 140 Because the purpose of the privilege is to engender trust and effective mental health treatment through confidentiality, I agree with the majority that con

2014See also Jaffee v. Redmond, 518 U.S. 1, 10 , 116 S.Ct. 1923 , 135 L.Ed.2d 337 (1996) ("[The psychotherapist-patient privilege is rooted in the 'imperative need for confidence and trust."" (quoting Trammel v. United States, 445 U.S. 40, 51 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980))); People v. Turner, 109 P.3d 639, 643 (Colo.2005) ("An assumption of confidentiality is essential to fostering trust between the parties to the relationship."). 140 Because the purpose of the privilege is to engender trust and effective mental health treatment through confidentiality, I agree with the majority that con

2014Cf. Wesp v. Everson, 33 P.3d 191, 197 (Colo.2001) ("Because the purpose of the [attorney-client] privilege is to encourage clients to confide in their attorneys, [the privilege] applies only to statements made in circumstances giving rise to a reasonable expectation that the statements will be treated as confidential." (internal quotation marks omitted)). $23 In sum, because threatening statements are not confidential as a matter of Colorado state law, the psychologist-patient privilege does not attach to such statements.

2013See People v. Marsh, - P.3d ---, --, 2011 WL 6425492 (Colo. ("[The nature of a conflict between the interests of a parent and of his or her child may preclude the parent from waiving the child's psychologist-patient privilege."); see also Attorney ad Litem v. Parents of D.K., 780 So.2d - 301, 307 (Fla.Dist.Ct.App.2001) ("Where the parents are involved in litigation themselves over the best interests of the child, the parents may not either assert or waive the privilege on their child's behalf."); In re Zappa, 6 Kan.App.2d 633 , 631 P.2d 1245, 1251 (1981) (parent cannot assert or waive the chil

2013See People v. Marsh, - P.3d ---, --, 2011 WL 6425492 (Colo. ("[The nature of a conflict between the interests of a parent and of his or her child may preclude the parent from waiving the child's psychologist-patient privilege."); see also Attorney ad Litem v. Parents of D.K., 780 So.2d - 301, 307 (Fla.Dist.Ct.App.2001) ("Where the parents are involved in litigation themselves over the best interests of the child, the parents may not either assert or waive the privilege on their child's behalf."); In re Zappa, 6 Kan.App.2d 633 , 631 P.2d 1245, 1251 (1981) (parent cannot assert or waive the chil

2013See People v. Marsh, - P.3d ---, --, 2011 WL 6425492 (Colo. ("[The nature of a conflict between the interests of a parent and of his or her child may preclude the parent from waiving the child's psychologist-patient privilege."); see also Attorney ad Litem v. Parents of D.K., 780 So.2d - 301, 307 (Fla.Dist.Ct.App.2001) ("Where the parents are involved in litigation themselves over the best interests of the child, the parents may not either assert or waive the privilege on their child's behalf."); In re Zappa, 6 Kan.App.2d 633 , 631 P.2d 1245, 1251 (1981) (parent cannot assert or waive the chil

2013Court, 668 P.2d 3, 8 (Colo.1983) (the psychotherapist-patient privilege applies to "not only testimonial disclosures in court but also pretrial discovery of information within the seope of the privilege"); see also People v. Sisneros, 55 P.3d 797, 800 (Colo.2002) ("Once it attaches, the psychologist-patient privilege protects testimonial disclosures as well as pretrial discovery of files or records derived or created in the course of the treatment."); accord People v. Hogan, 114 P.3d 42, 54 (Colo.App.2004); cf. Petro-Lewis Corp. v. Dist.

2013Court, 727 P.2d 41, 43 (Colo.1986) ("The testimonial [marital] privilege applies to in-court testimony, as well as depositions, interrogatories, requests for admissions, and other forms of testimonial discovery."). 1 23 "Testimonial" refers to evidence given under oath or affirmation at trial or in an affidavit or deposition.

2013See People v. Marsh, - P.3d ---, --, 2011 WL 6425492 (Colo. ("[The nature of a conflict between the interests of a parent and of his or her child may preclude the parent from waiving the child's psychologist-patient privilege."); see also Attorney ad Litem v. Parents of D.K., 780 So.2d - 301, 307 (Fla.Dist.Ct.App.2001) ("Where the parents are involved in litigation themselves over the best interests of the child, the parents may not either assert or waive the privilege on their child's behalf."); In re Zappa, 6 Kan.App.2d 633 , 631 P.2d 1245, 1251 (1981) (parent cannot assert or waive the chil

2013See People v. Marsh, - P.3d ---, --, 2011 WL 6425492 (Colo. ("[The nature of a conflict between the interests of a parent and of his or her child may preclude the parent from waiving the child's psychologist-patient privilege."); see also Attorney ad Litem v. Parents of D.K., 780 So.2d - 301, 307 (Fla.Dist.Ct.App.2001) ("Where the parents are involved in litigation themselves over the best interests of the child, the parents may not either assert or waive the privilege on their child's behalf."); In re Zappa, 6 Kan.App.2d 633 , 631 P.2d 1245, 1251 (1981) (parent cannot assert or waive the chil

1996Dill, 904 P.2d at 1371 . 7 B.

1996See, e.g., Dill, 904 P.2d at 1371 . 4 .