Minnesota: Case pits confidentiality vs. duty-to-warn

Defense argues therapist-in-training should not have reported statements

By Mike Mosedale
The Daily Record Newswire
MINNEAPOLIS, MN — For the second time in less than a year, the Minnesota Supreme Court wrestled with the complicated and fraught medical privacy case of Jerry Expose Jr., a St. Paul man who spent five months behind bars after he was charged with making terroristic threats during a court-ordered anger management counseling session.

The last time the high court weighed in on Expose’s case, it reversed his criminal conviction on the grounds that Nina Mattson, the therapist-in-training who reported his statements to St. Paul police, should not have been permitted to testify at his trial.

Last week, the justices mulled the case from a different vantage: whether Expose should be able to bring a civil lawsuit against Mattson and the clinic where she worked, Thad Wilderson & Associates, P.A., for disclosing his private medical information.

The key issue before the court: Should Mattson — and by extension the clinic — be afforded statutory immunity under the so-called “psychologist’s duty-to-warn” law (Minn. Stat. 148.975)? That law carves out an exception to confidentiality rules “when a client or other person has communicated to a licensee a specific, serious threat of physical violence against a specific, clearly identified … potential victim.”

In the view of St. Paul attorney A.L. Brown, who represented Expose in both the civil and criminal cases, the exception shouldn’t apply for one simple reason: At the time Mattson reported Expose’s statements, she was still in training and, as a matter of the plain language of the statute, not a licensee.

“There are things that lawyers can do, that law students cannot. There are things that licensees can do, that student practitioners cannot,” Brown told the justices.

“Let’s suppose that we decide the word ‘licensee’ is ambiguous and we have to look at legislative intent. … Is there a rational basis for the Legislature to say only a licensee can exercise this duty-to-warn?” asked Justice Christopher Dietzen.

The statute isn’t ambiguous, Brown answered. But even if it were, he added, the extension of such logic would grant immunity to an intern on the first day on the job, a broadening of statutory immunity that is both contrary to the court’s past holdings and bad public policy.

“The whole purpose of internship is so you grow over time, so you know the difference between transitory anger in an anger management session and an actual credible threat,” Brown opined. “I think this case, in many ways, illustrates why an intern shouldn’t have this level of immunity.”

Who’s a licensee?

William Hart of Meagher & Geer, P.L.L.P., the attorney who argued for Mattson and the clinic, urged the justices to consider Mattson a licensee or, at the least, as “an agent of the licensee.”
Mattson, he pointed out, reported Expose’s statements to her supervisor, assistant clinic director Harry Ford, who then instructed her to warn the target of Expose’s alleged threats — a Ramsey County child protection worker — and the police.

The justices then pressed Hart with hypotheticals. If Ford had asked a receptionist at the clinic to report Expose’s threats, asked Justice David Stras, “would your agency theory reach the receptionist?”

No, Hart answered, because unlike Mattson, that hypothetical receptionist would not be practicing under the auspices of Ford’s license.

Justice David Lillehaug wanted to know: Are there any constraints on what information Mattson could disclose? Could she properly surrender her session notes to police and prosecutors?
Mattson was required to make a reasonable effort to convey the threat, Hart responded, “and what could be more a reasonable effort than to turn over the notes that memorialized that threat?”

Could she then “disgorge” all of Expose’s records without violating privilege? asked Lillehaug.

“As long as it is a good-faith effort to disclose the threat,” Hart answered.

Hart further urged the justices to focus on the larger purpose of the duty-to-warn statute — averting violence.

“The micro-analysis of every word misses out on what the statute is supposed to do,” he opined. “This is not supposed to be a gotcha statute.”
Assuming that Mattson is covered under agency theory, Lillehaug later asked Brown, do her “good faith” efforts to assist police and prosecutors still violate the confidentiality requirements of the Minnesota Health Records Act?

“I believe there is a difference between a good faith and naïvety,” Brown answered. Even assuming she had a duty to warn, Brown added, she satisfied her statutory obligation once she
initially notified the police and the county child protection worker about Expose’s statements.

Hard to avoid liability

In an interview after the hearing, Brown declined to hazard a guess on how the high court will come down. But if the justices affirm the earlier decision from the Court of Appeals and permit Expose’s civil lawsuit to go forward, Brown ventured, Mattson and the clinic “will be hard pressed to avoid liability.”

In amicus briefs, the Minnesota Psychological Association and the Minnesota Board of Psychology warned about the ramifications of such an outcome. If there is no immunity for therapists-in-training like Mattson under the duty-to-warn statute, they contended, it could disrupt the current practice model for therapists and make it virtually impossible for trainees to fulfill requirements for licensure.

Brown said he is not persuaded by such arguments.

“This is about their business model, which says we can have these students provide mental health care so we want to make sure they’re covered [by the duty-to-warn statute],” said Brown. They should consider it from his client’s perspective, he added.

“I can’t imagine what it’s like to be Jerry Expose, to be ordered to go to anger management therapy and encouraged to share his thoughts and then have those thoughts broadcast not only in a public courtroom, but also in private conference call with a prosecutor whose only goal is to put him in jail,” Brown said. “I think that’s fundamentally wrong.”