IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

IN RE: MH2020-004882

No. 1 CA-MH 20-0090

 1 CA-MH 20-0098

 (Consolidated)

Appeal from the Superior Court in Maricopa County

No. MH2020-004882

 MH2020-005526

The Honorable Aryeh D. Schwartz, Judge

AFFIRMED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Anne C. Longo, Tawn T. Tao

Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix

By Cynthia D. Beck

Counsel for Appellants

OPINION

Judge Maria Elena Cruz delivered the opinion of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.

FILED 7-13-2021
IN RE: MH 2020-004882

Opinion of the Court

2

C R U Z, Judge:

¶1 In this consolidated appeal, two mental health patients argue 

the superior court erred by allowing testimony by clinical social workers 

who assessed them in the emergency room and concluded each needed to 

be evaluated by physicians for possible harm to themselves or others. The 

patients argue the social workers testified in violation of a statutory 

privilege that accords information “received by reason of the confidential 

nature of the behavioral health professional-client relationship.” Arizona 

Revised Statutes (“A.R.S.”) section 32-3283(A). We hold that a clinical social 

worker does not provide “behavioral health services” where he or she 

interacts with a patient only once to assess whether the patient should be 

evaluated as a risk of harm to themselves or others and where the social 

worker has warned the patient at the outset that any statements the patient 

makes about harming self or others will not remain confidential.

FACTUAL AND PROCEDURAL HISTORY

I. Appellant J.H., MH 20-0090

¶2 F.M. is a licensed clinical social worker employed at a 

hospital, where he performs “crisis intervention” in the emergency room 

for individuals who have threatened self-harm. In this role, F.M. assesses

whether a patient can be safely discharged home or must be admitted to the 

hospital for further evaluation by a psychiatrist.

¶3 J.H. went to the hospital for chest pains, and while in the 

emergency room, he made statements about harming himself. A nurse 

notified F.M., who interviewed J.H. to determine whether he was suicidal 

and “oriented to person, place, time.” F.M. warned J.H. that the 

confidentiality of their conversation had limits and told him that if he made 

statements about harming himself or others, F.M. would be required to 

report it “to the appropriate authorities.”

¶4 J.H. told F.M. that he felt “unstable” and had thought about

cutting his wrists. F.M. asked J.H. if he had ever had these thoughts before, 

and J.H. stated he had attempted suicide twice before. F.M. asked J.H. if he 

was taking his prescribed mental health medications, and J.H. said he was 

not. Based on these statements, F.M. deemed it unsafe to discharge J.H. 

without a psychiatric evaluation. When he told J.H. that he would not be 

allowed to leave the hospital, given that he was at high risk for suicide, J.H.

responded by yelling, cursing, and threatening F.M. J.H. was admitted and 
IN RE: MH 2020-004882

Opinion of the Court

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evaluated, and the evaluating physicians opined that he required inpatient 

and outpatient treatment.

¶5 At the evidentiary hearing on the petition for court-ordered 

treatment, F.M. was called to testify as one of the two required acquaintance 

witnesses. See A.R.S. § 36-539(B). J.H. objected, arguing he and F.M. had a 

confidential behavioral health professional-client relationship. After voir 

dire of F.M., the superior court found a confidential behavioral health 

professional-client relationship did not exist, and it permitted F.M. to 

testify.

¶6 After hearing the testimony of F.M. and J.H.’s grandfather 

and reviewing affidavits from the evaluating physicians, the court found 

by clear and convincing evidence that J.H. “is suffering from a mental 

disorder and, as a result, is persistently or acutely disabled, is a danger to 

self and is in need of treatment and is either unwilling or unable to accept 

voluntary treatment.” The court ordered J.H. to undergo combined 

inpatient and outpatient treatment until he was no longer persistently or 

acutely disabled, for a maximum of 365 days. J.H. timely appealed the 

treatment order.

II. Appellant M.P., MH 20-0098

¶7 W.G. is a licensed clinical social worker employed at a 

hospital. M.P. presented at that hospital’s emergency room with psychosis, 

and W.G. spoke with her there. W.G. told M.P. that she would be asking 

questions to determine if there was a risk M.P. might harm herself or others, 

and that M.P.’s statements in response to those questions would not be as 

confidential. W.G. expressly told M.P. that her statements could be used in 

a petition for court-ordered treatment and at a hearing related to such a 

petition.

¶8 W.G. noted that M.P. appeared to be very agitated, and M.P. 

said she was experiencing “audio from the outside,” which caused her to 

think about harming herself and suicide. W.G. tried to ask M.P. about her

mental health history, but M.P. was fixated on the “audio” and continued 

to say that “she didn’t want to be here” anymore and that it “wasn’t worth 

it to live.” W.G. told M.P. that she required mental health treatment, but 

M.P. refused to consent to treatment. M.P. stated she had gone to a 

psychiatric hospital before and did not want to return because “they lied”

to her. She also said she stopped taking her psychiatric medications 

because they did not work.
IN RE: MH 2020-004882

Opinion of the Court

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¶9 After evaluating M.P., two physicians concluded she required 

involuntary inpatient treatment and intensive case management until she 

was stable enough for outpatient treatment. A petition for court-ordered 

treatment was filed.

¶10 During the evidentiary hearing that followed, M.P. objected 

to W.G.’s testifying as an acquaintance witness, arguing she had a 

confidential behavioral health professional-client relationship with W.G.

After voir dire, the court found a confidential behavioral health 

professional-client relationship did not exist and allowed W.G. to testify. 

After hearing the testimony of W.G. and M.P.’s mother and reviewing the 

evaluating physicians’ affidavits, the court found by clear and convincing 

evidence that M.P. “is suffering from a mental disorder and, as a result, is 

persistently or acutely disabled, is in need of treatment and is either 

unwilling or unable to accept voluntary treatment.” The court ordered M.P. 

to undergo combined inpatient and outpatient treatment until she was no 

longer persistently or acutely disabled, for a maximum of 365 days. M.P. 

timely appealed the treatment order.

¶11 We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) 

and 36-546.01.

DISCUSSION

¶12 Appellants argue that the two licensed clinical social workers

testified in violation of A.R.S. § 32-3283, which establishes a privilege that, 

with certain exceptions, precludes a licensee from disclosing information 

received from a client. Appellants contend their treatment orders must be 

vacated because, absent the social workers’ testimony, the State did not 

present both of the two acquaintance witnesses required by A.R.S. § 36-

539(B). “The scope of the behavioral health professional-client privilege is 

a question of law we review de novo.” In re MH2019-004895, 249 Ariz. 283, 

286, ¶ 6 (App. 2020). We review issues of statutory interpretation de novo,

but we view the facts in the light most favorable to upholding the superior 

court’s judgment and will not set aside its findings unless clearly erroneous.

In re MH 2001-001139, 203 Ariz. 351, 353, ¶ 8 (App. 2002); In re MH 2008-

002596, 223 Ariz. 32, 35, ¶ 12 (App. 2009).

¶13 Section 32-3283(A) limits disclosure by a licensed behavioral 

health professional, including a clinical social worker licensed pursuant to 

A.R.S. § 32-3293, of certain information received from a “client.” Under 32-

3283(A):
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The confidential relationship between a client and a licensee, 

including a temporary licensee, is the same as between an 

attorney and a client. Unless a client waives this privilege in 

writing or in court testimony, a licensee shall not voluntarily 

or involuntarily divulge information that is received by 

reason of the confidential nature of the behavioral health 

professional-client relationship.

A.R.S. § 32-3283(A).

¶14 Section 32-3251(2) defines client as a “patient who receives 

behavioral health services from a person licensed pursuant to this chapter.” 

“Practice of behavioral health” includes “professional counseling,” and 

“[p]ractice of professional counseling” refers to “the professional 

application of mental health, psychological and human development 

theories, principles and techniques to:” (a) “[f]acilitate human development 

and adjustment throughout the human life span”; (b) “[a]ssess and facilitate 

career development”; (c) “[t]reat interpersonal relationship issues and 

nervous, mental and emotional disorders that are cognitive, affective or 

behavioral”; (d) “[m]anage symptoms of mental illness”; and (e) “[a]ssess, 

appraise, evaluate, diagnose and treat individuals, couples, families and 

groups through the use of psychotherapy.” A.R.S. § 32-3251(8), (10). 

“Psychotherapy” is defined as “a variety of treatment methods developing 

out of generally accepted theories about human behavior and 

development.” A.R.S. § 32-3251(14).

¶15 F.M. testified that he spoke with J.H. for only about fifteen to 

twenty minutes and did not provide him any therapy or counseling. 

Similarly, W.G. testified she spoke to M.P. only once, for about forty-five 

minutes, and did not provide her with any counseling or psychotherapy, 

which were not part of her job. Both clinical social workers testified they 

spoke to Appellants in the emergency room only to determine whether they 

posed a risk of harm to themselves or to others or required hospitalization 

to prevent such harm from occurring.

¶16 Appellants, however, claim F.M. and W.G. provided 

behavioral health services to them and formed a confidential relationship 

with them during their interactions. Appellants cite MH2019-004895, which 

held that because a professional mental health counselor had a confidential 

relationship with the patient, the counselor should not have been permitted

to testify as an acquaintance witness. 249 Ariz. at 289, ¶¶ 17-18. The facts 

of that case differ from those here, however. There, the witness was a 

professional counselor assigned to the patient as a clinical liaison, who had 
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an on-going relationship with the patient and had spoken with her on about

twelve different occasions. Id. at 287, ¶¶ 2, 12. The counselor also admitted 

she had a confidential relationship with the patient. Id. at ¶ 13.

¶17 In addition, there was in that case “[n]o testimony . . . showing 

that [the patient] was informed that her . . . interaction with [the counselor], 

or any prior interactions, fell outside the scope of a behavioral health

professional client relationship.” Id. Here, by contrast, the purpose of the 

social workers’ conversations with J.H. and M.P. was to determine whether 

either posed a risk of suicide, and F.M. and W.G. both made clear that any 

statements they made about harming themselves would not remain 

confidential. See id. at 286, ¶ 7 (“[T]he behavioral health professional-client 

privilege prohibits testimony that falls ‘within the scope of the privilege.’”) 

(quoting Bain v. Superior Court, 148 Ariz. 331, 334-36 (1986)). W.G. went so

far as to tell M.P. that the statements she made could be used in a petition 

for treatment or as testimony in a hearing. Based on the pre-discussion 

warnings the social workers gave J.H. and M.P, it would be unreasonable 

for them to believe the social workers would keep confidential any 

statements they made that revealed a risk of harm to themselves or others. 

See In re Pima Cnty. Mental Health Case No. MH1717-1-85, 149 Ariz. 594, 596 

(App. 1986); State v. Ortiz, 144 Ariz. 582, 583-84 (App. 1985).

¶18 Nothing in the record suggests that the interactions between 

F.M. and W.G. and Appellants rose to the level of behavioral health services

that might create confidential behavioral health professional-client 

relationships under A.R.S. § 32-3283. Accordingly, the superior court did 

not err in allowing F.M. and W.G. to testify as acquaintance witnesses at the 

hearings on the petitions for court-ordered treatment.

CONCLUSION

¶19 We affirm.