In People v. Carrier, No. 322020, the Michigan Court of Appeals held that a defendant’s communications with a mental health crisis line worker were not privileged where the defendant made threats of physical violence against reasonably identifiable third persons and he had the apparent intent and ability to carry out the threats in the foreseeable future. Under these circumstances, MCL 330.1946 requires a mental health professional to report the threats to law enforcement authorities. Accordingly, the court held that this statute operated to waive the otherwise applicable privilege protecting communications between a caller and mental health professional.
The defendant called the crisis line, whose number was given to him by the outpatient facility where he received mental health treatment, after he had been drinking. He eventually told the worker that he could see his ex-girlfriend “down the scope of his gun” and told the worker to call the police and that he was “locked and loaded” “waiting for the first badge to arrive.” The crisis line worker called 9-1-1 pursuant to his duty to report under MCL 330.1946. Defendant was eventually charged with one count of threat of terrorism, MCL 750.543m, and one count of felony firearm, MCL 750.227b.
The defendant argued that the statements made to the crisis line worker, who had a “limited license” for social work, was privileged as a statement made to license mental health professional under MCL 300.18513. First, the court rejected the prosecution’s contention that the statements were not privileged because the worker was not fully licensed, reasoning that he worked under the supervision of a fully licensed social worker. The court held that the communications were privileged.
Second, the court held that the privilege was waived when the defendant made the threats to the crisis line worker. MCL 330.1946 provides that a mental health professional has a duty to report to law enforcement authorities when a patient makes a threat of physical violence against a reasonably identifiable third person and the recipient has the apparent intent and ability to carry out that threat in the foreseeable future. The court held that this statute operated to waive the otherwise applicable privilege with regard to the threats. The court reasoned that if no waiver occurred, it would make it impossible for the third parties to procure a personal protection order against the threatening party and for the testimony to be used in involuntary hospitalization procedures, which is one way to fulfill the mental health professional’s duty to report. The court also rejected the defendant’s argument that federal common law created a privilege to which no waiver applied.
