In 2012, Jerry Expose Jr. sought anger management counseling from a mental health clinic. The clinic assigned Nina Mattson, then an intern training to become a licensed psychologist, to be Expose's therapist. During a counseling session, Expose gave Mattson reason to believe that he might harm a child-protection caseworker who he felt was keeping him from his children. Mattson's case notes state, "[Expose] said that if his court hearing … went awry, he would break [the caseworker's] back. He also said that if he couldn't get to her himself, he would only have to make a couple of phone calls to have her taken out" (Expose v. Thad Wilderson & Associates, P.A., 2015). Mattson reported Expose's statements to her supervisor, who advised her to contact law enforcement. Mattson then relayed Expose's threats to the police and to the caseworker.
Expose was arrested and charged with making terroristic threats, and Mattson was subpoenaed to testify at trial. Expose objected to Mattson's testimony, arguing that the statements he made during the counseling session were protected by the state's psychologist-patient privilege. The trial court overruled Expose's objection, and Mattson testified about Expose's statements. Expose was convicted and sentenced to 28 months in prison.
On appeal, Expose repeated his argument that Mattson's testimony violated Minnesota's psychologist-client privilege statute. This statute states, "A registered nurse, psychologist, consulting psychologist, or licensed social worker engaged in psychological or social assessment or treatment of an individual at the individual's request shall not, without the consent of the professional's client, be allowed to disclose any information or opinion based thereon which the professional has acquired in attending the client in a professional capacity, and which was necessary to enable the professional to act in that capacity."
The appellate court found that Mattson was a "psychologist" for the purposes of this statute, and that Expose's statements to her were governed by the privilege. Notably, the court also found that the privilege contains no exception for threats, and that even if the state's duty-to-warn statute might have allowed Mattson to disclose the threats directly to the caseworker, it did not waive Expose's privilege or otherwise authorize Mattson to testify to the threats in court (State v. Expose, 2014). Expose's conviction was reversed, and as of this writing, the case is under consideration by the Supreme Court of Minnesota.
Expose then sued Mattson and the clinic, claiming that they should be held liable for violating their duty of confidentiality under the Minnesota Health Records Act. Mattson and the clinic countered that they were immune from liability because Minnesota's duty-to-warn statute states that if a patient of a licensed psychologist has made a specific, serious threat against a specific victim, the licensed psychologist has a duty to warn of the patient's violent behavior, and good faith compliance with the duty to warn cannot result in liability against the licensee. Though Mattson prevailed at trial, once again the court of appeals reversed, holding that even though Mattson's disclosures were allowed under the ethics rules governing psychologists, the duty-to-warn statute did not apply because Mattson was not a licensed psychologist (Expose v. Thad Wilderson & Associates, P.A., 2015). This decision, too, is awaiting review by the Minnesota Supreme Court.
It should be noted that due to wide variations in state law, it is not clear that therapists outside Minnesota are vulnerable to being sued in this fashion. The cases described above are not yet settled. Nevertheless, Expose's litigation illustrates the complex interplay among professional ethics, confidentiality laws and therapists' duty to warn potential victims. Therapists should periodically review the laws pertaining to privilege, immunity and threat reporting in the jurisdictions where they practice.
“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
