By Paul Giancola, Claudia Stedman, and Savannah Wix, Snell & Wilmer, LLP

            On October 31, 2024, the Arizona Court of Appeals addressed the conditions that must be met to support a petition for involuntary treatment, under A.R.S. § 36‑539(B). Relying on the statute, the Court explained that a petition requires the testimony of (1) two acquaintance witnesses,[1] and (2) “two physicians or other health professionals who participated in the evaluation of the patient.” However, the Court noted that the relationship between a behavioral health provider and client is confidential, and the provider may not testify regarding that relationship or about the care rendered, unless the client waives that privilege. See A.R.S.§ 32‑3283(A). This confidential relationship extends to social workers who assist individuals with restoring “the ability to function physically, socially, emotionally, mentally and economically,” A.R.S.§ 32‑3251(12)(b), or who apply “social work theories, principles, methods, and techniques to [t]reat mental, behavioral, and emotional disorders.” Id. § 32‑3251(12)(a).

            In In Re: MH2023-004502, hospital staff asked social worker M.G. to perform a level of care (“LOC”) assessment for patient A.R. During the evaluation, M.G. told A.R. their consultation would not necessarily remain confidential. M.G. then applied for an involuntary evaluation of A.R., which became the basis of the petition for court-ordered treatment. A.R. moved to preclude M.G. as an acquaintance witness in the proceedings, arguing that M.G. was subject to the confidentiality requirements of A.R.S. § 32‑3283 because she was licensed pursuant to A.R.S. § 32‑3521. The lower court denied A.G.’s motion, finding that M.G.’s verbal disclaimer prevented the formation of a confidential relationship. During the proceedings for involuntary treatment, M.G. testified that she met A.R. only once and that she had neither a therapeutic nor a confidential relationship with A.R. The lower court ordered A.R. to undergo involuntary treatment, and A.R. appealed.[2]

            Citing the Arizona Supreme Court’s decision in Matter of Commitment of Allegedly Mentally Disordered Person, the Court of Appeals reiterated that “the legislature’s choice in A.R.S. § 36‑539(B) to require two professional evaluators, but separately, two acquaintance witnesses, demonstrated that an acquaintance witness was not simply a third or fourth professional evaluator.” 181 Ariz. 290, 292 (1995) (emphasis added). As such, “no person whose primary contact with the patient was to examine the patient during his or her commitment evaluation process may testify” as an acquaintance witness, especially when the purpose of an acquaintance witness is to “give the trial court an opportunity to determine how the patient behaves in situations other than commitment evaluation interviews.” Id.

            Applied to the facts in In Re: MH2023-004502, the Court of Appeals found that M.G.’s role was solely to evaluate A.R. for commitment. M.G. had only one clinical interaction with A.R., and M.G. had never witnessed how A.R. behaved on a day-to-day basis outside of the LOC assessment. Accordingly, the Court determined that M.G. could not testify as an acquaintance witness and that the superior court erred in ordering treatment.

            Moreover, the Court ruled that M.G.’s assessment was privileged under A.R.S. § 32‑3283(A), despite M.G.’s disclaimer. The Court concluded that the behavioral health professional privilege applied to M.G.’s testimony under the definitions of the “practice of social work” set forth in A.R.S. § 32-3251(12).  The record demonstrated that M.G. assisted A.R. to “restore [his] ability to function . . . socially, emotionally, [or] mentally . . .” and she “[t]reat[ed his] mental, behavioral, and emotional disorders” by providing a diagnostic evaluation. A.R.S. § 32‑3251(12)(a). Because the behavioral health privilege applied to M.G.’s LOC assessment, and a confidential relationship existed between M.G. and A.G., only A.G. could waive the privilege.

            Petitioners, defendants, and mental health providers participating in court-ordered evaluations should be aware of these confidentiality obligations and evaluate whether they have witnesses who will satisfy the acquaintance witness requirement set forth in A.R.S. § 36-539(B) to support court-ordered treatment.

[1] An acquaintance witness is a witness “acquainted with the patient at the time of the alleged mental disorder.” A.R.S. § 36‑539(B).

[2] The issue became moot during the appellate process because the superior court’s commitment order expired. However, the appellate court decided the merits of the appeal, determining that it involved issues of public importance capable of repetition yet evading review and that the liberty interests at stake would likely arise in other cases.