Court rulings sound alarm on confidentiality in peer support group interventions

By Emily Hitchings from Police1.com

Each day, across the United States, first responders risk their own safety for the welfare of the communities they serve. In addition to bodily harm, public safety employees are also exposed to both acute and cumulative trauma, making them vulnerable to developing post-traumatic stress disorder (PTSD), moral injury and other mental health challenges.

According to the Institutes of Health, a substantial majority of first responders (80% or more) are subjected to on-the-job trauma, and about one in three will go on to develop PTSD. The consequences can be severe: First responders are at elevated risk for developing depression and anxiety, misusing substances and suicidal ideation.

One way to counter this is by implementing organizational wellness initiatives, such as peer support programs, providing access to culturally competent clinicians, and chaplaincy. Some organizations have chosen to use critical incident stress debriefings (CISDs) after particularly traumatic events. According to an article in the journal Brief Treatment and Crisis Intervention, a CISD “consists of a group of emergency responders, all of whom were involved in the same critical incident, and the CISD intervention team members deployed for service. In law enforcement, the CISD team consists of at least one peer, who is a law enforcement officer, and at least one mental health professional.”

A key component of CISDs — and peer support activities in general — is that all interactions conducted under these programs are expected to be kept in the strictest confidence. As Jeff McGill notes on Police1.com, “administrators need to support these programs by adopting a clear policy outlining the use of critical incident debriefing teams and establishing confidentiality rules for officers participating in these sessions.”

Many legislators agree, as several states deem peer support communications as statutorily protected or privileged. However, two recent court cases (one in civil court and another in criminal court) threaten the foundational confidentiality of peer support programs when they are applied in group settings. This is unfortunate, as first responders are likely to refuse to participate if they can be compelled to testify about what they and others say during these post-critical incident interventions.

Boston (Mass.) case: Huffman v. City of Boston

The case in Boston revolves around a protest that four plaintiffs — Jasmine Huffman, Justin Ackers, Caitlyn Hall and Benjamin Chambers-Maher — attended on May 31, 2020, less than a week after the death of George Floyd in Minneapolis. In the civil lawsuit, the plaintiffs claim to have sustained injuries after being “physically attacked” by Boston police officers during the “peaceful” protest.

Following the incident, the defendants (along with most officers in the Boston Police Department) participated in mandatory critical incident stress debriefings conducted by a social worker. According to BPD policy, “All interactions between members with Boston Police personnel during any type of team intervention shall be kept strictly confidential ….” No records were kept regarding what was said during the CISDs, though the plaintiffs noted the officers made “startlingly consistent versions of the events that night — as if the officers all got their stories straight to protect each other from accountability for misconduct.”

In the suit, Huffman, Ackers, Hall and Chambers-Maher made a Monell claim, which asserts that “a plaintiff seeking to prove municipal liability under Section 183 must identify a municipal policy or custom that caused the plaintiff’s injury.” Because of their suspicion that the BPD had an unwritten “policy” that the CISD sessions be used to “get their stories straight” in case of possible accusations of misconduct, the plaintiffs made a motion to compel the officers to testify about what they and others discussed during the debriefings. The defendants contested this and asserted that their testimony couldn’t be compelled because the CISDs were privileged.

In an order on Dec. 18, 2023, Magistrate Judge Jennifer C. Boal granted the plaintiffs’ motion to compel the testimony, saying: “While it is undoubtedly good that inures to society and the individual officers from group debriefing sessions, the Defendants have simply not met their burden to withhold the information sought by the Plaintiffs on the basis of privilege.” In her ruling, Judge Boal noted another case, Commonwealth v. Bernard, in which Massachusetts’ Supreme Judicial Court allowed for such “social worker privilege.” However, Judge Boal noted, “that case involved a single counselor providing services to a single patient — not a group debriefing.”

Vancouver (Wash.) case: State v. Segura

On Jan. 29, 2022, Julio Cesar Segura was accused of robbing a convenience store in Vancouver, Washington. A vehicle pursuit ensued, but the suspect managed to evade capture. Later that night, a woman called 911 to report that her husband, Donald Sahota, an officer with the Vancouver Police Department, had confronted the suspect and was currently grappling with him in front of the house. Reports indicate Segura disarmed Sahota, stabbing him several times in their driveway before forcing his way inside the Sahota house. When officers arrived moments later, a Clark County deputy sheriff mistook Sahota for Segura and opened fire, shooting him several times. Sahota died on the scene, and Segura surrendered and was taken into custody.

According to the county medical examiner, “one of the stab wounds from the fight would likely have been fatal without immediate medical attention, but died from the gunshot wounds first.” Segura was charged with a number of crimes, including murder, robbery and burglary. He pleaded not guilty to all charges.

Following the death of Officer Sahota, more than two dozen members of six law enforcement agencies (including the Clark Regional Emergency Services Agency and the Vancouver Police Department) participated in a group CISD on Feb. 10, 2022. The invitation sent to participants noted, “The CISD is Voluntary and Confidential” (emphasis in original) and the session was led by Dr. Garen Weitman, who was identified in the invitation as the Clark County Sheriff’s Office’s psychologist. Segura’s defense counsel submitted a “Motion Re: Order to Answer Questions: No Privilege,” asking to depose the law enforcement personnel about the content of the debriefing. The agencies opposed the motion, noting the debriefing was led by a licensed psychologist and asserting both “psychologist-patient privilege” and “peer support group privilege.”

In a Jan. 12, 2024, ruling on the motion, Judge Nancy Retsinas stated, “it is reasonable to conclude that the 2/10/22 CISD was a formal, structured story-telling process that sought to normalize responses to the traumatic event, allow individuals involved in the incident response the chance to talk about their experiences with people who experienced the same traumatic event, educate participants about recovery from that traumatic event, and identify individuals in need of post-CISD resources or services. This is something different from therapy or counseling, group or otherwise.” Because of this, her decision states, that privilege was denied and the officers who attended the CISD would be compelled to testify under oath about the discussion.

Confidentiality vs. privilege

Both decisions seem to fly in the face of their respective state laws. According to Massachusetts’ Act Relative to Critical Incident Intervention by Emergency Service Providers (signed into law in 2018):

Information provided by an emergency service provider to a certified emergency service provider or licensed mental health professional as part of crisis intervention services provided by a certified emergency service provider or licensed mental health professional to the emergency service provider shall be confidential and the certified emergency service provider or licensed mental health professional shall not be required or compelled to testify or otherwise divulge any information provided by an emergency service provider to the certified emergency service provider or licensed mental health professional as part of crisis intervention services performed by the certified emergency service provider or licensed mental health professional, except as provided by subsection (c). The exceptions include situations in which the person participating in the CISD threatens harm to themselves or others, admits to committing a crime, or gives express consent to disclose the content of the CISD session. Note that the law uses the term “confidential” and not “privileged.”

Similarly, the Revised Code of Washington 5.6.060(6)(a) states:

A peer support group counselor shall not, without consent of the peer support group client making the communication, be compelled to testify about any communication made to the counselor by the peer support group client while receiving counseling. The counselor must be designated as such by the agency employing the peer support group client prior to the incident that results in counseling. The privilege only applies when the communication was made to the counselor while acting in his or her capacity as a peer support group counselor. The statute specifically defines a “Peer support group counselor” as:

A nonemployee counselor who has been designated by the first responder entity or agency, local jail, or state agency to provide emotional and moral support and counseling to a peer support group client who needs those services as a result of an incident in which the peer support group client was involved while acting in his or her official capacity. The law also notes that privilege is not guaranteed if “the counselor was an initial responding first responder, department of corrections staff person, or jail staff person; a witness; or a party to the incident which prompted the delivery of peer support group counseling services to the peer support group client.” None of these factors apply in State v. Segura.

According to the U.S. Department of Justice’s guidelines on confidential and privileged communications, “A confidential communication is one made with the expectation of privacy.” Furthermore, “if confidential information is subpoenaed, it must generally be released unless it is privileged information.” In contrast, “Privileged communication is defined as statements made by people within protected relationships (e.g., husband and wife, attorney and client) that the law shelters from forced disclosure on the witness stand.” While some state laws use “privilege” and others use “confidentiality” (and some use them interchangeably), the nature of the “protected relationship” between counselor and client is important and should be protected.

Impact of rulings

Unfortunately, the cultural stigma surrounding first responders (particularly law enforcement personnel) asking for help for mental health remains a challenge. Despite the inherently stressful nature of their work, there’s a persisting reluctance among many first responders to acknowledge vulnerability or seek support. This stigma tends to be reinforced by law enforcement culture and can be bolstered by concerns about being perceived as weak, among other professional repercussions.

Peer support programs, though recognized as a valuable resource, often face obstacles to implementation or access due to fears of judgment or confidentiality concerns. Fostering a supportive environment within the first responder community, where seeking help is normalized and peer support services are embraced as a vital component of mental wellness, is essential to changing this culture.

It’s an acknowledged fact that more first responders die by suicide than from on-the-job actions. The threats to peer support confidentiality posed by these and other cases have the potential to further discourage public safety employees from asking for help from their peer support teams, which could further increase the number of lives lost.

Based on these rulings, first responders need to understand that the landscape may be changing for peer support activities when applied in group settings, such as post-critical incident interventions. It’s vital that agencies, clinicians and peer support team leaders/members know about the possible limitations to confidentiality/privilege going forward.

Legislative efforts to protect peer support privilege

Anticipating the potential issues centered around group post-interventions and confidentiality/privilege, several states have taken legislative action to prevent situations like we’ve seen in Boston and Vancouver. For example, Utah law explicitly states that neither peer support team members nor those who receive peer support services can be compelled to testify about group peer support activities.

Utah statute, as laid out in Title 78B, sanctions public safety agencies to create peer support teams, develop guidelines for how they function and train the individual team members. Once the team is created and trained, “In accordance with the Utah Rules of Evidence, a peer support team member may refuse to disclose communications made by an individual participating in peer support services, including group therapy sessions.”

This law is bolstered by Rule 507 of the Utah Rules of Evidence, which comprehensively defines “peer support communication” as “information that is communicated in confidence to a peer support team member for the purpose of providing peer support services, including but not limited to oral statements, written statements, notes, records, or reports.” In this context, a “peer support team member” is someone who is:

(a)(2)(A) designated as a peer support team member for first responders under Utah Code § 78B-5-901 and(a)(2)(B) providing peer support services in accordance with written guidelines required by Utah Code § 78B-5-901.Furthermore, those who receive peer support services are afforded privilege under these rules:

(b) Statement of the Privilege. A person receiving peer support services from a peer support team member has a privilege during the person’s life, to refuse to disclose and to prevent any other person from disclosing peer support communications.(c) Who May Claim the Privilege. The privilege may be claimed by the person who received the peer support services, or the guardian or conservator of the person who received the peer support services. A person who was a peer support team member at the time of the communication is presumed to have authority during the life of the person who received the peer support services to claim the privilege on behalf of the person who received the peer support services. There are several exclusions and conditions, of course, but as long as CISDs are conducted by trained peer support personnel under appropriate conditions, the privilege of group sessions in Utah is protected.

Similarly, a bill introduced in Colorado, Senate Bill 24-063, is currently being considered to amend current state law regarding the confidentiality of group peer support activities. The bill would amend the state’s current Revised Statues, 13-90-107, to update the language regarding “Who may not testify without consent.” According to the legislative summary, the bipartisan legislative update “prohibits a peer support team member or recipient of group peer support services from being examined as a witness without the consent of the person to whom the examination relates.”

Calls to action

Beyond taking steps to ensure peer support activities are conducted in a way that helps preserve confidentiality, there are other things you and your agency can do to help protect programs and processes. These include:

1. Notifying your agency’s peer support team: Send them a link to this article so they can get up to speed on these cases and the threat they represent to post-incident group interventions, including CISDs. It’s also recommended that you get all members of your agency’s team trained and certified via Lexipol’s peer support training and certification program.
2. Consult with your agency’s legal counsel: Before engaging in a CISD, consider consulting with a legal advisor tied to the jurisdiction or agency who can assist in shoring up privileged communication. Many of these attorneys understand the delicate balance of caring for the wellness of employees and protecting them from legal action.
3. Speak to your union rep: If you have a union, inform them about the threats cases like these could pose to peer support programs, especially those conducting CISDs. Encourage the union to leverage existing relationships with legislators to update state laws so group peer support activities are protected under state law.
4. Talk to lawmakers: Whether or not you know your state representative(s) personally, you can always reach out directly to make them aware of the risks these cases represent to the welfare of first responders as well as the activities of your peer support teams. Send a letter and/or set up a meeting to express your concerns about current state laws.
5. Continue to support each other: Whatever you do, don’t put a halt to peer support activities. One-on-one communications with peer support and mental health professionals are still considered confidential, protected conversations. With good training and careful precautions, you can keep fighting the stigma, supporting your peers and moving forward.

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About the author
Emily Hitchings served as a police officer for the Aurora, Colorado Police Department for nearly 17 years in a variety of uniform and undercover assignments, including patrol, vice and narcotics, and fugitive apprehension. While there, she was also tasked with creating the agency’s employee support and wellness program, while also overseeing support programs such as peer support and critical incident response teams. She has also played a pivotal role in establishing and building employee support and wellness programs for departments of all sizes throughout the country. She is now a counselor in Colorado serving first responders and their families and works for Lexipol, creating wellness solutions in the areas of peer support training and certification and training for mental health professionals working with public safety personnel.