Ms P was a nurse who worked in a mental health hospital for several years and knew most of the patients on her floor by name. The nurse was not involved directly in the patients’ treatment; her responsibilities were largely related to medication management.

One afternoon, Ms P was in the hospital’s library, which was used by the patients during their recreation time. A number of patients were looking for books, using the library’s computers, or sitting on chairs or sofas talking.

Ms P became aware of a conversation between 2 patients, Mr C and another patient. These 2 patients were sitting on chairs in the main area of the library, with people walking by them during the conversation. Mr C, who had been involuntarily committed to the hospital, was telling the other patient about his life. Specifically, Mr C was talking about how he had been “on the run” in 1991, after killing someone. The conversation continued with Mr C discussing how he had been in a bar before the murder, and then he spoke about disposing of the body afterward.

Mr C made some other comments and then told the other patient that DNA evidence might still be in his van, although the incident had taken place 25 years ago.


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Concerned about what she overheard, Ms P wrote a note in the hospital’s computer system documenting the details of the conversation and alerted Mr C’s treatment team. The treatment team was concerned and told the hospital’s administration.

The hospital’s administration met with their attorney to decide what to do with the information.

They decided to reveal Mr C’s statement to the police because it was specific enough that it seemed legitimate. It turned out that the police had been investigating the murder for over 20 years, without being able to solve it. When this information was added to what they had, they were able to arrest Mr C for the murder.

Mr C was charged with murder and was represented by a defense attorney who immediately made a motion to exclude from evidence the record of the statement and any testimony regarding the statement that Mr C made in the hospital’s library.

The defense attorney argued that anything Mr C had said was confidential and privileged. The trial court agreed and held that the written notes and any testimony about them should be excluded from Mr C’s trial.

The state (which was prosecuting Mr C) appealed and filed a motion for reconsideration. The state’s attorneys argued that Mr C’s statements were made to a fellow patient, not a psychologist, psychiatrist, or health care worker, and that Ms P had simply overheard them in a public setting. Therefore, argued the state’s attorney, the statement should not be considered privileged.

Despite this argument, the court re-entered its original order, finding that the testimony was privileged. The state appealed to the Superior Court.

Legal Background

On appeal, the Superior Court reversed the trial court’s order and found the incriminating statement to be admissible. The Superior Court noted that Mr C’s argument about why the statement should be inadmissible was that his mental health record and the communications contained therein were privileged under the state’s code pertaining to confidential communications to psychiatrists or psychologists.

However, the court pointed out that Mr C’s disclosures were not made to a psychiatrist or psychologist (or even a health care practitioner of any sort), nor were they made during the course of treatment. The statements were made to another patient as part of a private conversation during recreation time and outside of any therapy session.

“Put simply,” wrote the Superior Court, “since Mr C did not make his statements to a member of his treatment team, since his statements were not confidential, and since they were not made in the course of treatment, they are not protected under the psychotherapist-client privilege.”

The court held that the statement would be admissible at trial and remanded the case back to the trial court.

Protecting Yourself

The Superior Court looked at this case very narrowly, based on the state code regarding communications to mental health practitioners, since that was what Mr C was using to argue why his statement should not be allowed. However, this was probably a tactical error on Mr C’s part, and he might have been better off with another argument.

In general, courts believe that evidence is extremely important and that exceptions, such as privileged information, must be narrowly construed. In its decision, the Superior Court noted that “we must be mindful that evidentiary privileges are not favored.” It quoted from a higher court that stated “exceptions to the demand for evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth.”