                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    January 27, 2015
               Plaintiff-Appellant,                                 9:00 a.m.

v                                                                   No. 322020
                                                                    Bay Circuit Court
BRANDON WILLIAM CARRIER,                                            LC No. 13-010577-FH

               Defendant-Appellee.


Before: MURPHY, P.J., and METER and SERVITTO, JJ.

MURPHY, P.J.

        Defendant was charged with one count of threat of terrorism, MCL 750.543m, and one
count of possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. In support of the threat-of-terrorism charge, the prosecution relied, in part, on phone
communications between defendant and an emergency services specialist while the specialist
was manning a mental health crisis hot-line. After the 80-minute call was concluded, the
emergency services specialist contacted 911 and reported specific threats that defendant had
made during the crisis hot-line call. Defendant argued that his conversation with the emergency
services specialist and the related 911 recording concerned privileged communications and were
thus inadmissible in the criminal case brought against him. The district court bound defendant
over on the two charges following the preliminary examination, declining to address the
privilege issue, as it found that other unchallenged evidence existed that adequately established
the probable cause threshold. Subsequently, the circuit court ruled that defendant’s statements
and threats that were conveyed to the emergency services specialist during the crisis hot-line call
constituted privileged communications, absent any waiver of the privilege. Accordingly, the
circuit court granted defendant’s motion to exclude the testimony of the specialist and the
associated 911 recording, but the court denied defendant’s accompanying motion to quash the
information. The prosecutor then filed an application for leave to appeal, challenging the circuit
court’s evidentiary ruling and arguing that the doctrine of privilege did not require exclusion of
the evidence. The application was granted by this Court. People v Carrier, unpublished order of
the Court of Appeals, entered July 29, 2014 (Docket No. 322020). We now hold that although
defendant’s communications were generally privileged, the privilege was effectively waived or
lost to the extent that defendant voiced threats of physical violence against reasonably
identifiable third persons as to whom he had the apparent intent and ability to carry out the
threats in the foreseeable future, MCL 330.1946(1). We therefore reverse and remand.


                                                -1-
                                            I. FACTS

         At the preliminary examination, Jason Felber testified that on August 13, 2013, he went
with defendant to a local bar and had a couple of drinks. Felber indicated that they left the bar
well after midnight and then went to Felber’s house and consumed more alcohol. According to
Felber, defendant thereafter became upset and started threatening to harm people. Felber
testified that defendant threatened to put defendant’s girlfriend in a wood chipper and to kill
Deputy Tony Peter of the Bay County Sheriff’s Department, as well as Peter’s family. Felber
then asked defendant to leave and called 911 to report his concerns about defendant’s threats.

         Christian Ginther, an emergency services specialist at Bay Arenac Behavioral Health,
testified at the preliminary examination that his job involved answering the mental health crisis
hot-line. As part of his employment, and when not answering the crisis hot-line phones, Ginther
also “perform[ed] mental health evaluations on . . . individuals presenting for hospitalization.”
Ginther testified that he was qualified to perform these tasks because he had a bachelor’s degree
in social work. He also indicated that he was ten months away from completing a master’s
degree in social work. More testimony regarding Ginther’s credentials was elicited at the
subsequent circuit court hearing on defendant’s motion to exclude the challenged evidence and
to quash the information. At that motion hearing, Kristy Moore took the stand and testified that,
at the time of the incident, she was employed by Bay Arenac Behavioral Health and managed the
clinical services program. Moore stated that she had a master’s degree in social work and was a
licensed social worker. Moore supervised Ginther, and she testified that Ginther’s licensing
status when he received the call from defendant was as follows, “Limited license, Bachelor of
social work.” Moore then discussed differences between limited and full licenses with respect to
social work and counseling. She agreed with the prosecutor’s characterization that a “limited
license is kind of a temporary measure where you’ve got to obtain the full license.” Moore
testified that Ginther was not a licensed physician, a licensed psychologist, a registered
professional nurse, a master’s licensed social worker, a licensed professional counselor, nor a
marriage or family therapist. We shall examine below additional testimony from Moore on other
matters.

       Returning to Ginther’s testimony at the preliminary examination, he indicated that
defendant called the crisis hot-line around 3:00 a.m. on August 14, 2013, and that he was on the
phone with defendant for about 80 minutes. Ginther testified that defendant requested to speak
with “Vanessa” from Crossroads who had told him to contact the hot-line if he needed help after
hours.1 Defendant had seen Vanessa within the past day to address certain issues. The record


1
  Ginther testified that Crossroads was an outpatient facility that provided services for indigent
consumers who lacked insurance to cover mental health treatment. With respect to defendant
and his treatment at Crossroads, Moore explained that Crossroads was a “contract agency” and
that defendant had been sent to Crossroads through her department at Bay Arenac Behavioral
Health. Moore testified that therapists at Crossroads were instructed to give patients the contact
information for the mental health crisis hot-line so that patients could call after hours if a crisis
arose.


                                                -2-
was never developed so as to identify Vanessa’s last name, title, educational background, or her
licensing status.

        Ginther next testified with respect to the substance of his conversation with defendant
during the crisis hot-line call, noting that defendant started off polite and agreeable but became
more frustrated and angry toward the end of the conversation. We shall limit our discussion of
the statements made by defendant to Ginther to those related to threats of physical violence
against identifiable third persons. Ginther testified that defendant was very upset about an ex-
girlfriend and stated that he could see her down the scope of his gun. When Ginther told
defendant, “you said you’re at home, I know you don’t see her through your gun,” defendant
proceeded to list the types of guns that he had in his possession and expressed that he had
ammunition. According to Ginther, defendant told him to call the police. Defendant threatened
that he was “locked and loaded,” waiting for the “first badge” to arrive. Ginther testified that
toward the end of the conversation, defendant was making comments about people being outside
of his house and was becoming increasingly agitated. Ginther indicated that after he heard a
loud bang, defendant stopped talking for a moment and it seemed as if defendant had gone
outside to check something, but defendant did eventually return to the phone. Other testimony
detailed below established that the police had arrived at defendant’s home in response to Felber’s
911 call. Ginther claimed that he never told defendant that he was going to call the police or
911. Ginther quickly ended the conversation when defendant threatened Ginther, stating, “I’m
gonna come up to the hospital, I know where you work, I know where that office is, I’m gonna
shoot you, I’m gonna shoot your wife and your kids.”

       Ginther testified that after he hung up the phone, he immediately called 911 for the
following reason:

               [A]nytime a person is expressing suicidal or homicidal allegations we go
       over in their HIPAA[2] rights with them that those are things that we’re not
       privileged to keep secret, that we have a mandated duty to report.[3] . . . I had a
       duty to call 9-1-1 if only to do a safety check on him to make sure that he was
       doing all right. I wasn’t calling 9-1-1 to get him trouble, I was calling 9-1-1 to
       make sure that he was all right because he had been drinking and he had been
       claiming that he had guns in his possession and he was expressing thoughts of
       wanting to hurt other people.

        Sergeant Michael Shore, a shift commander at the Bay County Sheriff’s Office, testified
that at 3:41 a.m. on August 14, 2013, he received a call from the 911 dispatcher. Shore


2
 HIPAA is an acronym for the Health Insurance Portability and Accountability Act, 42 USC
1320d et seq.
3
 Ginther testified on cross-examination that he did not go over HIPAA rules with defendant, but
he was sure that those rules would have been provided to defendant as part of entering into
services with Crossroads. However, Ginther conceded that he had no direct knowledge that
Crossroads went over HIPAA rules with defendant.


                                               -3-
explained that the dispatcher “had informed me they . . . received a phone call from [Felber] and
he stated a friend had just left his house agitated and had made threats towards the police.”
Shore indicated that he was provided information that defendant had consumed alcohol, was
agitated, had made direct threats against Deputy Peter, and that defendant possibly had weapons
in his residence. Shore testified that he notified other deputies on duty and that they all
proceeded to defendant’s home. Shore explained that he and the other deputies parked several
blocks away from defendant’s residence and approached the house undetected. Shore asserted
that he overheard defendant talking on his phone through a kitchen window that was open.
According to Shore, at one point he heard a door on the side of the garage open and someone
walk out of the residence. Shore could not see whether it was defendant. Shore testified that
afterward, defendant’s phone conversation resumed. He overheard defendant saying, “I’m
locked and loaded, I’m waiting for the first badge I see.” Shore further testified that he also
heard defendant ranting that “he was in the Michigan Militia and we don’t know who we’re
fuckin’ with.” Shore stated that, upon hearing this remark, he and the deputies decided to pull
back. Shore then contacted the Michigan State Police’s Emergency Services Team (EST) to
come in and handle the matter.

        Shore testified that when he returned to the scene after obtaining a search warrant for
defendant’s home, the EST had already arrived. The EST detonated two flash grenades and
directed defendant to exit the house. Shore indicated that defendant eventually surrendered and
was taken into custody. Upon entry into defendant’s residence, police located a .270 semi-
automatic rifle and a .22 semi-automatic rifle.

       As indicated earlier, Kristy Moore, the clinical services program manager who supervised
Ginther, testified at the hearing on defendant’s motion to exclude Ginther’s testimony and the
911 recording and to quash the information. Moore testified that her department provided after-
hours emergency services and pre-screening. According to Moore, five psychiatrists worked in
the department and were supervised by a medical director. Regarding the crisis hot-line, Moore
explained:

                If someone is in crisis, we try to help determine what level they’re at, first
       of all, [so] we can calm them down. And we try to help them problem-solve. We
       talk about coping skills. If we think that they’re in extreme crisis and they need to
       be hospitalized, we will encourage them to come in to be screened. Sometimes,
       people call in and really sound like they could need extra help, and we will . . .
       encourage them to enter services. And, if they give us permission, we can refer
       them on to our Access Department. So, it’s kind of a point of entry as well.

        Moore indicated that her crisis hot-line workers did not diagnose mental health disorders
over the phone, given that it was a complicated process and generally done face-to-face. When
asked if crisis hot-line workers provided any treatment, Moore responded, “we are helping
people, we’re assisting people. Some people use it as part of their treatment.” Moore testified
that crisis hot-line workers did not provide any psychotherapy or counseling to callers. When
Moore was queried whether it would be fair to say that Ginther had collected information on
defendant for use by people who diagnose and treat patients, Moore responded, “Yes.”



                                                -4-
        Moore additionally testified that the crisis hot-line workers were under the supervision of
a clinician – herself – and that after workers talked to callers, she would typically review the
workers’ notes and related paperwork. Ginther had previously testified that he took notes during
his conversation with defendant, but he had not turned those notes over to the police because, in
his view, they were privileged. Moore testified that Ginther phoned her at home after he had
called 911 because it was the protocol that “any time we have to call 9-1-1 for a duty to warn, . . .
we immediately call the supervisor in case we feel any other action is necessary.” Moore stated
that she reviewed Ginther’s documentation concerning the incident and determined that he had
properly and professionally handled the situation.

        Defendant was arrested and charged with one count of threat of terrorism, MCL
750.543m,4 and one count of felony-firearm, MCL 750.227b. As reflected earlier in this opinion,
the circuit court subsequently granted defendant’s motion to exclude the challenged evidence on
the basis of privilege, finding that Ginther was a “paraprofessional” who collected information
for the purpose of assisting the “treater” in making a mental-health diagnosis and providing
treatment. The court ruled that although Ginther was not a licensed psychologist or counselor,
he had been acting in a role meant to gather information that was then made part of defendant’s
file and utilized by licensed professionals in formulating a treatment plan for defendant’s care.
On this basis, the circuit court determined that defendant’s statements to Ginther were protected
by the psychiatrist-patient privilege. The court ruled that defendant had effectively asserted the
privilege and, accordingly, Ginther would not be allowed to testify at trial regarding his crisis
hot-line conversation with defendant.

       The circuit court rejected the prosecution’s argument that, under MCL 330.1946,
defendant lost or waived the protection of any assumed privilege when he made violent threats.


4
  MCL 750.543m(1)(a) provides, in relevant part, that “[a] person is guilty of making a terrorist
threat . . . if the person . . . [t]hreatens to commit an act of terrorism and communicates the threat
to any other person.” MCL 750.543b(a) defines an “act of terrorism,” providing:
              “Act of terrorism” means a willful and deliberate act that is all of the
       following:

             (i) An act that would be a violent felony under the laws of this state,
       whether or not committed in this state.

             (ii) An act that the person knows or has reason to know is dangerous to
       human life.

              (iii) An act that is intended to intimidate or coerce a civilian population or
       influence or affect the conduct of government or a unit of government through
       intimidation or coercion.




                                                 -5-
The court agreed that the statute gave rise to a duty to warn under the circumstances. This duty,
according to the circuit court, carved out an exception to the privilege, but nothing in the statute
indicated that the privilege would be lost for other purposes after Ginther fulfilled his duty to
warn by calling 911 and reporting the threats. The circuit court found, therefore, that the 911
recording and Ginther’s testimony about the conversation with defendant were inadmissible.
The court further ruled that, contrary to the prosecution’s assertion, defendant did not waive the
privilege when he conducted the phone conversation with Ginther in a manner that allowed
Sergeant Shore to overhear the conversation. The circuit court explained, “I don’t think that, at
this hour of the evening standing on your porch, you would expect necessarily to have a police
officer that close. So, I don’t think that he didn’t take precautions that were necessary.” The
court, however, did determine that the police could testify as to what they overheard, considering
that Felber had earlier called 911 to indicate his concerns and that such was the reason the police
were present at defendant’s home, which presence was entirely proper. The circuit court denied
defendant’s motion to quash the information in light of the untainted evidence that supported the
charges, including Felber’s testimony.

        The prosecutor appealed the circuit court’s decision to exclude the evidence on the basis
of privilege.

                                         II. ANALYSIS

                                 A. STANDARDS OF REVIEW

       With respect to a trial court’s ruling regarding, in general, the admissibility of evidence,
our Supreme Court in People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999), observed:

               The decision whether to admit evidence is within the trial court's
       discretion; this Court only reverses such decisions where there is an abuse of
       discretion. However, decisions regarding the admission of evidence frequently
       involve preliminary questions of law, e.g., whether a rule of evidence or statute
       precludes admissibility of the evidence. This Court reviews questions of law de
       novo. Accordingly, when such preliminary questions of law are at issue, it must
       be borne in mind that it is an abuse of discretion to admit evidence that is
       inadmissible as a matter of law. [Citations omitted.]

        The interpretation and application of a privilege constitute legal questions that are subject
to de novo review. Meier v Awaad, 299 Mich App 655, 663; 838 NW2d 146 (2013).

                    B. PRINCIPLES OF STATUTORY CONSTRUCTION

        This appeal requires examination and interpretation of various statutory provisions.
“When interpreting a statute, we follow the established rules of statutory construction, the
foremost of which is to discern and give effect to the intent of the Legislature.” Whitman v City
of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). “‘The first step when interpreting a
statute is to examine its plain language, which provides the most reliable evidence of [legislative]
intent.’” People v McKinley, 496 Mich 410, 415; 852 NW2d 770 (2014), quoting Ter Beek v
City of Wyoming, 495 Mich 1, 8; 846 NW2d 531 (2014). “If the language of a statute is clear
and unambiguous, the statute must be enforced as written and no further judicial construction is
                                                -6-
permitted.” Whitman, 493 Mich at 311. When an ambiguity does indeed exist, we may “go
beyond the statutory text to ascertain legislative intent.” Id. at 312. “Effect should be given to
every phrase, clause, and word in the statute and, whenever possible, no word should be treated
as surplusage or rendered nugatory.” Id. at 311-312.

      With respect to the construction of statutory privileges, our Supreme Court in People v
Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1994), stated:

               Unlike other evidentiary rules that exclude evidence because it is
       potentially unreliable, privilege statutes shield potentially reliable evidence in an
       attempt to foster relationships. While the assurance of confidentiality may
       encourage relationships of trust, privileges inhibit rather than facilitate the search
       for truth. Privileges therefore are not easily found or endorsed by the courts. The
       existence and scope of a statutory privilege ultimately turns on the language and
       meaning of the statute itself. Even so, the goal of statutory construction is to
       ascertain and facilitate the intent of the Legislature. [Citations and internal
       quotation marks omitted.]

“[S]tatutory privileges are narrowly defined, while their exceptions are broadly construed.”
People v Childs, 243 Mich App 360, 364-365; 622 NW2d 90 (2000).

                        C. PRIVILEGE – LAW AND APPLICATION

        We shall take a two-step approach in our analysis. With respect to step one, we examine
whether, in general, defendant’s communications constituted privileged communications,
concluding that his conversation with Ginther was generally privileged. In regard to step two,
we examine whether the privilege was effectively waived or lost in light of the nature or
substance of some of his communications. On this issue, we hold that the privilege was
effectively waived or lost to the extent that defendant voiced threats of physical violence against
reasonably identifiable third persons as to whom he had the apparent intent and ability to carry
out the threats in the foreseeable future.

        “Privilege is governed by the common law, except as modified by statute or court rule.”
MRE 501. In this case, there is no dispute that the issue of privilege is governed by Michigan
statutory law and not our common law. Under the Michigan Mental Health Code, MCL
330.1001 et seq., “[p]rivileged communications shall not be disclosed in civil, criminal,
legislative, or administrative cases or proceedings, or in proceedings preliminary to such cases or
proceedings, unless the patient has waived the privilege, except in the circumstances set forth in
this section.” MCL 330.1750(1) (emphasis added). Pursuant to MCL 330.1700(h), a “privileged
communication” is “a communication made to a psychiatrist or psychologist in connection with
the examination, diagnosis, or treatment of a patient, or to another person while the other person
is participating in the examination, diagnosis, or treatment or a communication made privileged
under other applicable state or federal law.”




                                                -7-
        We initially note that the prosecution devotes considerable time arguing that a
communication is privileged only when made to a “mental health professional,” as that term was
defined in MCL 330.1100b(15)5 at the time of the crisis hot-line call, and that Ginther was not a
“mental health professional” under the statutory definition. However, neither MCL 330.1750
(generally barring the use of “privileged communications” in court proceedings) nor MCL
330.1700(h) (defining a “privileged communication”) makes any reference whatsoever to the
term “mental health professional.” And the prosecution’s citation of Dawe v Dr Reuven Bar-
Levav & Assoc, PC, 485 Mich 20; 780 NW2d 272 (2010), in support of its argument lacks merit,
considering that the Dawe Court only referenced the term “mental health professional” in the
context of construing MCL 330.1946. Dawe, 485 Mich at 22, 25, 27-34. MCL 330.1946 creates
a duty for mental health professionals to warn or protect third persons with respect to dangerous
patients under certain circumstances, see Dawe, 485 Mich at 27-28; it does not pertain to the
establishment of a privilege. Later in this opinion we shall address the effect of MCL 330.1946
on a recognized privilege, but for now we are focused on simply determining whether
defendant’s communications were generally privileged.

        Reading MCL 330.1750(1) in conjunction with MCL 330.1700(h), there are three broad
scenarios in which a communication can become privileged, providing protection from
disclosure of the communication in court cases and proceedings. First, a “communication made
to a psychiatrist or psychologist in connection with the examination, diagnosis, or treatment of a
patient” is ordinarily privileged and cannot be disclosed unless waived by the patient. MCL
330.1700(h); MCL 330.1750(1). The prosecutor argues that Ginther was not a psychiatrist or a
psychologist, which is true, and that, moreover, Ginther was not examining, diagnosing, or
treating defendant during the crisis hot-line call. Defendant contends that he was effectively a
patient of a psychiatrist or psychologist considering his status as a patient of Crossroads and Bay
Arenac Behavioral Health, which were staffed by psychiatrists and psychologists who
participated in and oversaw operations. Defendant maintains that Ginther’s work on the crisis
hot-line was simply an extension or part of defendant’s treatment in relation to after-hours and
emergency-type mental health care that he was in need of when he called the hot-line. For the
reasons explained below, we find it unnecessary to address the parties’ arguments in regard to
this particular scenario contemplated by MCL 330.1750(1) and MCL 330.1700(h).

        The second scenario under MCL 330.1750(1) and MCL 330.1700(h) in which a privilege
typically arises and affords protection from disclosure is when a communication is made “to
another person [aside from a psychiatrist or psychologist] while the other person is participating
in the examination, diagnosis, or treatment” of a patient. This language envisions a patient being
examined, diagnosed, or treated by a psychiatrist or psychologist, with another “person”
participating in the examination, diagnosis, or treatment who then engages in communications
with the patient. The parties present various arguments with respect to this language; however,
we again find it unnecessary to address and resolve these arguments, given our conclusion that


5
  See 2012 PA 500. MCL 330.1100b was subsequently amended pursuant to 2014 PA 72 and
2014 PA 200, shifting the definition of “mental health professional” to subsection (16) of the
statute with minor variations in the definition that are not relevant to our current discussion.


                                                -8-
the third scenario contemplated by MCL 330.1750(1) and MCL 330.1700(h) was implicated in
this case.6

        The third scenario under MCL 330.1750(1) and MCL 330.1700(h) in which a privilege
can arise and afford protection from disclosure is when “a communication [is] made privileged
under other applicable state or federal law.” (Emphasis added.) Accordingly, this language
incorporates by reference other statutory privilege provisions, as well as common-law privilege
principles, existing under either state or federal law. We begin with a fairly brief examination of
federal law. First, FRE 501 provides:

              The common law – as interpreted by United States courts in the light of
       reason and experience – governs a claim of privilege unless any of the following
       provides otherwise:

               • the United States Constitution;

               • a federal statute; or

               • rules prescribed by the Supreme Court.

              But in a civil case, state law governs privilege regarding a claim or
       defense for which state law supplies the rule of decision.

        HIPAA immediately comes to mind as potentially applicable, but federal courts have
indicated, “We do not think HIPAA is rightly understood as an Act of Congress that creates a
privilege.” Northwestern Mem Hosp v Ashcroft, 362 F3d 923, 926 (CA 7, 2004) (noting the
purely procedural character of HIPAA in regard to disclosure of information in judicial
proceedings); see also United States v Bek, 493 F3d 790, 802 (CA 7, 2007); Wade v Vabnick-
Wener, MD, 922 F Supp 2d 679, 685 n 6 (WD Tenn, 2010).7 However, the United States
Supreme Court has held that, by means of federal common law, “confidential communications
between a licensed psychotherapist and her patients in the course of diagnosis or treatment are
protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence.” Jaffee v
Redmond, 518 US 1, 15; 116 S Ct 1923; 135 L Ed 2d 337 (1996). The Jaffee Court further
ruled:

               All agree that a psychotherapist privilege covers confidential
       communications made to licensed psychiatrists and psychologists. We have no
       hesitation in concluding in this case that the federal privilege should also extend
       to confidential communications made to licensed social workers in the course of


6
 We do note that there was no evidence in the record that defendant had been directly examined,
diagnosed, or treated by a psychiatrist or psychologist; the professional or licensing status of
Crossroad’s “Vanessa” was never explored.
7
 We have not been directed to any federal statute or constitutional provision that would create a
privilege under the circumstances of this case.


                                                   -9-
       psychotherapy. The reasons for recognizing a privilege for treatment by
       psychiatrists and psychologists apply with equal force to treatment by a clinical
       social worker . . ., social workers provide a significant amount of mental health
       treatment. Their clients often include the poor and those of modest means who
       could not afford the assistance of a psychiatrist or psychologist, but whose
       counseling sessions serve the same public goals. Perhaps in recognition of these
       circumstances, the vast majority of States explicitly extend a testimonial privilege
       to licensed social workers. [Id. at 15-17 (citations omitted).]

        Here, according to Moore, Ginther only had a “limited” license, and she did not view
crisis hot-line workers as providing psychotherapy. That said, the federal common-law privilege
recognized in Jaffee, as employed through the conduit of FRE 501, has been extended by the
Ninth Circuit to cover communications made by employees to work-site based counselors, even
though the counselors were not licensed psychiatrists, psychologists, or social workers. Oleszko
v State Compensation Ins Fund, 243 F3d 1154 (CA 9, 2001). The federal appellate court noted
that, despite being unlicensed, the counselors all had “backgrounds in psychology or social work,
including relevant clinical and/or field experience.” Id. at 1156. In United States v Lowe, 948 F
Supp 97, 99 (D Mass, 1996), a federal district court extended the federal common-law privilege
recognized in Jaffee to encompass communications made to rape crisis counselors, who were
specially trained but not licensed psychotherapists or social workers, but who were required to
operate under the supervision of a licensed professional. An analogy could be made between the
work performed by a rape crisis counselor as addressed in Lowe and Ginther’s work on the
mental health crisis hot-line.

       We are not aware of any precedent from the United States Supreme Court that has
addressed the issue of privilege under a set of facts similar to those presented here. And the
opinions from lower federal courts on the subject of extending Jaffee to even arguably
comparable facts are indeed sparse. We thus are not prepared to conclude that defendant’s
communications to Ginther were generally privileged under definitive federal law. On the other
hand, with respect to state law and as explained below, there is clear statutory support for the
conclusion that defendant’s communications were, in general, confidential and privileged.

          The parties and the circuit court paid no heed to Kristy Moore’s testimony that Ginther, at
the time of the incident, had a “[l]imited license, [b]achelor of social work.” Ginther testified
that he had a bachelor’s degree, but had not yet earned a master’s degree, in social work, but he
was not directly questioned regarding any licensures. Moore discussed the nature of Ginther’s
limited license, agreed that the license was temporary, and explained the differences between
limited and full licenses. She testified that Ginther had been working towards a “full licensure of
. . . [b]achelors in social work.” Under MCL 333.18509(2), the board of social work “may grant
a limited license to engage in the 2-year postdegree experience required under subsection (1)[8]


8
  Under subsection (1) of MCL 333.18509, to become a fully “licensed bachelor’s social
worker,” an individual “shall have been awarded a bachelor's degree in social work from a
college or university social work program approved by the board and shall have completed at
least 2 years of full-time postbachelor's degree experience, or the equivalent in part-time hours,


                                                -10-
to an individual who has completed all the educational requirements for licensure as a bachelor's
social worker or a master's social worker.” (Emphasis added.) Additionally, MCL 333.18506
provides:

                An individual who is granted a limited license under section 18509(2) to
       engage in the 2-year postdegree experience in the practice of social work at the
       bachelor's or master's level shall practice under the supervision of a licensed
       master's social worker and confine his or her practice to an agency, a health
       facility, an institution, or another entity approved by the board.

        Ginther practiced under Moore’s supervision, and Moore was a licensed master’s social
worker. The relevancy of Ginther’s “limited license” to our privilege issue is revealed in MCL
333.18513, which, amongst other licensed social workers, covers limited licensed bachelor’s
social workers, and which provides in pertinent part:

              (1) An individual registered or licensed under this part [Part 185 of the
       Public Health Code (PHC), MCL 333.1101 et seq.] . . . is not required to disclose
       a communication or a portion of a communication made by a client to the
       individual or advice given in the course of professional employment.

               (2) Except as otherwise provided in this section, a communication
       between a registrant or licensee or an organization with which the registrant or
       licensee has an agency relationship and a client is a confidential communication.
       A confidential communication shall not be disclosed, except under either or both
       of the following circumstances:

               (a) The disclosure is part of a required supervisory process within the
       organization that employs or otherwise has an agency relationship with the
       registrant or licensee.

               (b) The privilege is waived by the client or a person authorized to act in
       the client's behalf.

                                               ...

               (4) A registrant or licensee may disclose a communication or a portion of
       a communication made by a client pursuant to section 946 of the mental health
       code, 1974 PA 258, MCL 330.1946, in order to comply with the duty set forth in
       that section.

       Given that Ginther had a limited license, bachelor’s of social work, as governed by Part
185 of the PHC, that defendant was a client of Bay Arenac Behavioral Health and its “contract
agency” Crossroads, as testified to by Moore, and considering that the communications at issue
were made in the course of Ginther’s professional employment with Bay Arenac Behavioral
in the practice of social work at the bachelor's level under the supervision of a licensed master's
social worker.”


                                               -11-
Health, we conclude that MCL 333.18513 generally rendered defendant’s communications
confidential and privileged. Accordingly, it can accurately be stated that those communications,
in general, were “made privileged under . . . applicable state . . . law,” thereby fitting the
definition of a “privileged communication,” MCL 330.1700(h), and in turn ordinarily barring
disclosure of the communications in a criminal case or proceeding, MCL 330.1750(1).

       With respect to step two in our analysis, we must next determine whether the privilege
was effectively waived or lost, allowing for disclosure in the criminal prosecution against
defendant. MCL 330.1750(2) lists a variety of circumstances in which “[p]rivileged
communications shall be disclosed upon request.” But none of those circumstances are
applicable here. However, MCL 330.1750(4) provides that “[p]rivileged communications may
be disclosed under [MCL 330.1946] to comply with the duty set forth in that section.”
Furthermore, as reflected above, MCL 333.18513, which gave rise to the privilege in the first
place, provides in subsection (4) that “[a] . . . licensee may disclose a communication or a
portion of a communication made by a client pursuant to . . . MCL 330.1946, in order to comply
with the duty set forth in that section.”

       Accordingly, we turn our attention to MCL 330.1946, which provides, in relevant part, as
follows:

               (1) If a patient communicates to a mental health professional who is
       treating the patient 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 mental health professional has a duty to take
       action as prescribed in subsection (2). Except as provided in this section, a mental
       health professional does not have a duty to warn a third person of a threat as
       described in this subsection or to protect the third person.

              (2) A mental health professional has discharged the duty created under
       subsection (1) if the mental health professional, subsequent to the threat, does 1 or
       more of the following in a timely manner:

               (a) Hospitalizes the patient or initiates proceedings to hospitalize the
       patient . . . .

               (b) Makes a reasonable attempt to communicate the threat to the third
       person and communicates the threat to the local police department or county
       sheriff for the area where the third person resides or for the area where the patient
       resides, or to the state police.

               (c) If the mental health professional has reason to believe that the third
       person who is threatened is a minor or is incompetent by other than age, takes the
       steps set forth in subdivision (b) and communicates the threat to the department of
       social services in the county where the minor resides and to the third person's
       custodial parent, noncustodial parent, or legal guardian, whoever is appropriate in
       the best interests of the third person.

                                               ...
                                               -12-
                (4) A mental health professional who determines in good faith that a
        particular situation presents a duty under this section and who complies with the
        duty does not violate [MCL 330.1750]. . . . A certified social worker, social
        worker, or social worker technician who determines in good faith that a particular
        situation presents a duty under this section and who complies with the duty does
        not violate section 1610 of the occupational code, Act No. 299 of the Public Acts
        of 1980, being section 339.1610 of the Michigan Compiled Laws. . . . .[9]

         The prosecution relies on MCL 330.1946 in support of its argument that the statute
creates a “threat of physical violence” exception to any assumed privilege and that the exception
extends to testimony in court and not only the initial warning to others. MCL 330.1946 indicates
that it is only a “mental health professional” who is saddled with the duty to warn or protect
under the circumstances outlined in the statute. Interestingly, while the prosecutor emphatically
argues that Ginther was not a “mental health professional” for purposes of determining the
existence of a privilege, the prosecutor proceeds to accept without pause the applicability of
MCL 330.1946 to carve out a privilege exception, absent the acknowledgement that the duty
under MCL 330.1946 extends only to a “mental health professional.”

        At the time of the crisis hot-line call, MCL 330.1100b(15), subsequently amended by
2014 PA 72 and 2014 PA 200, defined a “mental health professional” as “an individual who is
trained and experienced in the area of mental illness or developmental disabilities and who is . . .
[a] physician . . ., [a] psychologist . . ., [a] registered professional nurse . . ., [a] licensed master’s
social worker licensed under MCL 333.16101 to 333.18838 . . ., [a] licensed professional
counselor . . ., [or] [a] marriage and family therapist . . . .” See 2012 PA 500 (emphasis added).
Ginther was not a physician, psychologist, nurse, licensed professional counselor, or marriage
and family therapist, and while he was licensed under MCL 333.18509(2) and MCL 333.18506,
it was not as a master’s social worker. Thus, at first blush, it would appear that there was no
duty to warn or protect under MCL 330.1946, which would seem to circumvent any argument
that MCL 330.1946 provided a basis to dissolve the statutory privilege. However, as touched on
earlier, because Ginther only had a limited license, he was required to “practice under the
supervision of a licensed master's social worker.” MCL 333.18506. Moore, Ginther’s
supervisor, was a licensed master’s social worker who was trained and experienced in the area of
mental illness, and a licensed master’s social worker qualifies as a “mental health professional”
under the prior MCL 330.1100b(15)(d).10 Because Ginther necessarily worked in tandem with
and under the statutorily-mandated supervision of Moore, and because Moore was obligated to




9
  We note that MCL 339.1610 was repealed by the Legislature pursuant to 2000 PA 11; however,
the Legislature failed to make a contemporaneous change to MCL 330.1946(4) to reflect the
repeal of MCL 339.1610. Social work is now addressed in Part 185 of the PHC, and the
privilege provision, as alluded to above, is found in MCL 333.18513.
10
   Moore would also be considered a “mental health professional” under the current version of
the statute. MCL 330.1100b(16)(d).


                                                   -13-
review Ginther’s work, as she did in this case, we conclude that whether it was Moore or
Ginther, there was a duty to warn and protect under MCL 330.1946.11

        Having ruled that MCL 330.1946 was implicated here, we must next address the circuit
court’s determination that once the required warning was given and the duty was dispatched
under MCL 330.1946, no further disclosures were permissible. Framed a bit differently, the
question is whether a generally privileged communication can be disclosed in a court case or
proceeding after the communication was properly disclosed to satisfy the duty under MCL
330.1946 or after there was a recognized failure to comply with the duty under the statute. We
hold that the Legislature, in enacting MCL 330.1946, intended and envisioned the use of an
otherwise privileged communication in a court case or proceeding when the duty to warn or
protect was indeed implicated in a given matter.

        While the statutory scheme allows for disclosure of a privileged communication to
comply with the duty to warn or protect set forth in MCL 330.1946, there is ultimately no
language that expressly addresses the status of such a communication post disclosure or where
MCL 330.1946 was implicated but the mental health professional failed to make the required
disclosure. We cannot agree that the lack of such language means that the privilege is somehow
revived or resurrected. MCL 330.1946 was clearly and indisputably enacted to protect the safety
of a third person from a patient who voiced a threat of physical violence against the person to a
treating mental health professional. A mental health professional can satisfy the duty under
MCL 330.1946 when it arises by making a reasonable attempt to communicate a particularized
threat to a threatened third person in conjunction with communicating the threat to the police.
MCL 330.1946(2)(b). It would defy logic and the legislative intent to conclude that once a
disclosure is made pursuant to MCL 330.1946(2)(b), the threatening communication cannot be
disclosed or used in court cases or proceedings, considering that the protection the Legislature
intended to afford third persons would not be fully realized. For example, once a third person
was warned of a specific threat, the third person could not effectively utilize the court system to
obtain protection from the threat, e.g., procurement of a personal protection order (PPO), if the
threatening communication was not subject to disclosure or admissible in a PPO proceeding,
MCR 3.701 et seq. By way of another example, once the police were made aware of a specific
threat of physical violence against a third person, they would be significantly handcuffed with
respect to protecting the third person, as an arrest would not be a viable avenue of protection
because supporting testimony by the mental health professional could not be obtained.

        Additionally, a mental health professional can satisfy the duty under MCL 330.1946
when it arises by hospitalizing a patient or initiating “proceedings to hospitalize [a] patient”
under MCL 330.1400 et seq. (civil admission and discharge procedures regarding the mentally
ill) and MCL 330.1498a et seq. (civil admission and discharge procedures for emotionally



11
   The circuit court did conclude that MCL 330.1946 was implicated and that Ginther had a duty
to warn and protect. We agree that defendant communicated threats of physical violence against
reasonably identifiable third persons and that he had the apparent intent and ability to carry out
those threats in the foreseeable future. MCL 330.1946(1).


                                               -14-
disturbed minors). MCL 330.1946(2)(a). It is nonsensical to conclude that after a mental health
professional hospitalizes a patient or initiates proceedings to hospitalize a patient in compliance
with the statutory duty under MCL 330.1946, the mental health professional is barred from
testifying about threats in subsequent and related hospitalization and commitment proceedings
involving the patient. Furthermore, under MCL 330.1946(2)(c), if the threatened third person is
a minor or incompetent, the Department of Human Services (DHS) must be alerted, along with
others, and clearly the Legislature implicitly accepted and understood that DHS would initiate
protective proceedings in court in some instances in order to protect the minor or incompetent
person from the patient. If the Legislature did not so intend, what conceivable purpose would
there be in requiring a mental health professional to alert DHS of a dangerous patient, especially
given that the mental health professional would have already been required to notify the minor or
incompetent person, the police, and the parent or legal guardian of the minor or incompetent
person. MCL 330.1946(2)(c).

       Even more enlightening on the issue would be a situation in which MCL 330.1946 was
implicated, but the mental health professional failed to comply with the duty, with the threatened
third person later being injured or killed by a patient. In that circumstance, it is beyond
reasonable argument that the third person or his or her estate would have a cause of action
against the mental health professional. See Dawe, 485 Mich 20 (determining whether a
common-law cause of action for malpractice by a mental health professional could be maintained
or whether MCL 330.1946 now governed all such suits). But if the underlying threatening
communication could not be disclosed and was inadmissible in court proceedings, the lawsuit
would necessarily fall apart and would be unsustainable. The Legislature certainly did not intend
or envision the exclusion of threatening communications in a civil action against a mental health
professional for breach of the duty set forth in MCL 330.1946.

        A privilege may be waived by operation of law. Saur v Probes, MD, 190 Mich App 636,
640; 476 NW2d 496 (1991). We hold that once MCL 330.1946 was implicated and the duty to
warn or protect became mandatory, the privilege enjoyed by defendant was effectively and
permanently waived or lost by operation of law to the extent of communications that threatened
physical violence against reasonably identifiable third persons as to whom defendant had the
apparent intent and ability to carry out the threats in the foreseeable future.12 To rule otherwise,
in our view, would reflect a wholesale failure to honor the principles that privileges should not
be easily endorsed by a court, Stanaway, 446 Mich at 658, and that an exception to a statutory
privilege must be broadly construed, Childs, 243 Mich App at 364-365.

        The Stanaway Court observed that statutory privileges attempt to foster relationships and
assure confidentiality. Stanaway, 446 Mich at 658. Given that threatening communications
fitting with the parameters of MCL 330.1946(1) can be properly disclosed to police, third



12
   We note that although the record did not show that defendant had received notice by
Crossroads or Ginther that communications falling within the parameters of MCL 330.1946
could be disclosed and used in court, nothing in MCL 330.1946 indicates or remotely suggests
that such notice must be given before the statute is implicated.


                                               -15-
persons, hospital personnel, social services, and parents and guardians, any confidentiality and
fostered relationship existing before disclosure will be significantly fractured and nearly if not
entirely eviscerated after disclosure. To use a colloquial expression, “the cat has been let out of
the bag” following disclosure. To then simply permit testimony or evidence in court regarding a
threatening communication that has already been disclosed does little if anything to further erode
confidentiality. Precluding the testimony or evidence concerning a threatening communication
will not magically restore the lost confidentiality or rebuild the damaged relationship caused by a
disclosure.

         We now take a moment to address some federal caselaw cited by defendant in support of
his argument that once disclosure or a warning is made in compliance with MCL 330.1946, no
further disclosures are permitted in a criminal prosecution of a patient. Defendant relies on
United States v Hayes, 227 F3d 578, 586 (CA 6, 2000), which held that the federal common-law,
psychotherapist-patient privilege, while not preventing a psychotherapist from complying with a
duty to warn or protect innocent third parties, serves as a bar to the psychotherapist actually
testifying against a patient in a criminal prosecution for threats made by the patient during a
psychotherapy session. The prosecutor in Hayes unsuccessfully argued in favor of a “dangerous
patient” exception to the psychotherapist-patient testimonial privilege that would have allowed
for the psychotherapist to testify in court about patient threats made in the course of counseling.
The Eighth and Ninth Circuits have joined the Sixth Circuit in rejecting a dangerous-patient
exception to the federal psychotherapist-patient privilege. United States v Ghane, 673 F3d 771,
785-786 (CA 8, 2012); United States v Chase, 340 F3d 978, 985-992 (CA 9, 2003). However,
the Tenth Circuit has indicated that a psychotherapist may testify against a defendant patient in a
criminal case about a threat made by the patient if “the threat was serious when it was uttered
and . . . its disclosure was the only means of averting harm . . . when the disclosure was made.”
United States v Glass, 133 F3d 1356, 1360 (CA 10, 1998). We also note the following language
in United States v Auster, 517 F3d 312, 318-319 (CA 5, 2008), where the Fifth Circuit made an
observation consistent with our’s regarding the minimal benefit, if any, to a psychotherapist-
patient relationship that would result by disallowing trial testimony when a warning was already
permissible:

               The deleterious effect of a . . . warning on the “atmosphere of confidence
       and trust” is further reinforced by the knowledge that the intimate details of
       therapy will be spread to more than just the target of the threat. There is, after all,
       no obligation that the target keep the . . . warning confidential, and it is unrealistic
       to believe that he will do so . . . .

               Thus, knowing that anyone, or everyone, might be privy to the secret will
       embarrass the patient and will detrimentally affect his relationships with others.
       Such a disclosure might also cost the patient his job. The marginal increase,
       therefore, in effective therapy achieved by privileging psychotherapist-patient
       communications at trial, but still allowing the therapist to warn threatened third
       parties, is de minimis.

        We further note that the United States Supreme Court in Jaffee, 518 US at 18 n 19,
indicated:


                                                -16-
               Although it would be premature to speculate about most future
       developments in the federal psychotherapist privilege, we do not doubt that there
       are situations in which the privilege must give way, for example, if a serious
       threat of harm to the patient or to others can be averted only by means of a
       disclosure by the therapist.

        We have already concluded that there is no definitive federal law recognizing a privilege
under the facts of this case; therefore, the dangerous-patient exception and the question regarding
its applicability under federal law need not be reached. Moreover, Hayes does not reflect a
definitive federal principle with respect to the applicability of the dangerous-patient exception,
given the little and indeed conflicting federal caselaw on the subject. And the footnote in Jaffee,
518 US at 18 n 19, tends to lend support for recognizing a dangerous-patient exception to the
privilege. In sum, we reject defendant’s federal caselaw arguments.

                      D. 911 RECORDING – HEARSAY ARGUMENT

        Defendant argues that assuming we hold that the evidence is not inadmissible on the basis
of privilege, as we have now ruled, the 911 recording is nevertheless inadmissible as hearsay,
absent any exception. The 911 recording can be viewed as a memorialization of Ginther’s effort
to comply with the duty to warn and protect under MCL 330.1946. The 911 recording contained
Ginther’s statements that in turn recalled defendant’s alleged statements and threats. Because the
circuit court never reached this issue, and because resolution of the issue could entail
examination of the exceptions to hearsay, MRE 803, which may require underlying factual
determinations, we leave the issue for the circuit court to address on remand.

                                      III. CONCLUSION

        We hold that although defendant’s communications were generally privileged, the
privilege was effectively waived or lost to the extent that defendant voiced threats of physical
violence against reasonably identifiable third persons as to whom he had the apparent intent and
ability to carry out the threats in the foreseeable future, MCL 330.1946(1).13 Testimony at trial
concerning threats falling within the parameters of MCL 330.1946(1) is not excludable on the
basis of privilege. For purposes of clarity on remand, testimony regarding portions of
defendant’s communications that provide context to any threats are also not barred by
privilege.14 And of course, should defendant himself wish to introduce into evidence any part of




13
   To be clear, despite the preliminary determination regarding the existence of threats for
purposes of resolving the privilege issue under MCL 330.1946(1), the jury remains free to find
that no threats were made in rendering a verdict on the threat-of-terrorism charge. See MRE
104.
14
  We note that we reject, for the reasons given by the circuit court, the prosecution’s waiver-of-
privilege argument that was based on defendant speaking on the phone to Ginther while police
were present at defendant’s residence.


                                               -17-
his communications in his defense, privilege will not preclude the evidence, as defendant has full
control over waiving the privilege.

        Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.

                                                            /s/ William B. Murphy
                                                            /s/ Patrick M. Meter
                                                            /s/ Deborah A. Servitto




                                              -18-
