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Feb. 11, 2026 Get Citation Alerts Download PDF Add Note

In Re: Mh2023-004502

Arizona Supreme Court

• Citations: None known

• Docket Number: CV-24-0275-PR

• Opinion

• Authorities (13)

• Cited By (0)

• Summaries (0)

• Similar Cases (26.2K)

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Combined Opinion

                        by William G. Montgomery

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

IN RE: MH2023-004502

No. CV-24-0275-PR
Filed February 11, 2026

Appeal from the Superior Court in Maricopa County
The Honorable Nicolas B. Hoskins, Commissioner
No. MH2023-004502
AFFIRMED

Opinion of the Court of Appeals, Division One
258 Ariz. 556 (App. 2024)
VACATED

COUNSEL:

Rachel H. Mitchell, Maricopa County Attorney, Sean M. Moore (argued),
Deputy County Attorney, Phoenix, Attorneys for State of Arizona

Sherri McGuire Lawson, Maricopa County Legal Defender, Robert S.
Shipman (argued), Deputy Legal Defender, Maricopa County Legal
Defender's Office, Phoenix, Attorneys for MH 2023-004502

Joseph Adam Carver, Deputy Legal Defender, Coconino County Legal
Defender’s Office, Flagstaff; Jennifer W. Stock, Deputy Public Defender,
Coconino County Public Defender’s Office, Flagstaff; Rosemarie Peña-
Lynch, Maricopa County Office of Public Defense Services, Phoenix; Steve
B. Koestner, Deputy Legal Advocate, Maricopa County Office of the Legal
Advocate, Phoenix; Robert S. Lerman, Pascal Brown, Deputy Public
Advocates, Maricopa County Office of the Public Advocate, Mesa; Gary M.
Kula, Deputy Public Defender, Maricopa County Office of the Public
Defender, Phoenix; and Ann L. Bowerman, Deputy Mental Health
Defender, Pima County Mental Health Defender, Tucson, Attorneys for
Amici Curiae
IN RE: MH2023-004502
Opinion of the Court

JUSTICE MONTGOMERY authored the Opinion of the Court, in which
CHIEF JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICES
BOLICK, BEENE, KING, and BERCH (Retired) joined. *

JUSTICE MONTGOMERY, Opinion of the Court:

¶1 Arizona law establishes a multi-step process for the
involuntary treatment of a mental disability. Preliminary to a
court-ordered evaluation for mental health treatment, “[a]ny responsible
individual may apply for a court-ordered evaluation of a person who”
meets specified criteria involving a mental disability and “is unwilling or
unable to undergo a voluntary evaluation.” See A.R.S. § 36-520(A) (2022). 1
Then, a licensed healthcare agency conducts a screening evaluation of the
person. See A.R.S. § 36-521(A). If the screening establishes reasonable
cause to believe that the person has a mental disability and will not
voluntarily undergo an evaluation, the healthcare agency must prepare and
file a petition for a court-ordered evaluation. See A.R.S. § 36-521(D).

¶2 If, after reviewing the petition, the superior court finds
reasonable cause to believe that the statutory criteria are met, the court must
order an evaluation. See A.R.S. § 36-529(B). If the evaluating agency
determines that the person—now designated as the patient—has a serious
mental health disability, the agency must petition the court for an order for
treatment. See A.R.S. § 36-531(B).

¶3 At the hearing on the petition for court-ordered treatment
(“COT”), the petitioner must provide “the testimony of two or more
witnesses . . . acquainted with the patient at the time of the alleged mental
disorder” (“acquaintance witnesses”), as well as testimony from two
physicians or healthcare professionals who evaluated the patient. See
A.R.S. § 36-539(B). If the court finds clear and convincing evidence of the

• Justice Maria Elena Cruz is recused from this matter. Pursuant to article 6, section 3 of the Arizona Constitution, Justice Rebecca White Berch (Retired) of the Arizona Supreme Court was designated to sit in this matter. 1 Because the statutes in question were significantly amended by the Legislature in 2025, we cite to the versions in effect at the time of this case. We note as appropriate where amendments affect our analysis.

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IN RE: MH2023-004502
Opinion of the Court

need for treatment, it may order inpatient, outpatient, or combined care.
See A.R.S. § 36-540(A), (D).

¶4 In this case, a licensed social worker, M.G., assessed A.R. to
gather information for the purpose of determining an appropriate level of
care, including whether to petition for a court-ordered evaluation. Later,
at a hearing on a COT petition for A.R., M.G. testified as an acquaintance
witness. Two issues arise from these circumstances. First is whether
M.G., given her status as a licensed social worker and role in the screening
process, could testify as an acquaintance witness under § 36-539(B) at A.R.’s
COT petition hearing. Second is whether M.G. and A.R. had a confidential
“behavioral health professional-client relationship” under A.R.S.
§ 32-3283(A), which would preclude M.G. from testifying about any
information received from A.R.

¶5 With respect to the first issue, on March 31, 2025, the
Legislature amended § 36-539(B) to clarify that licensed behavioral health
professionals may testify as acquaintance witnesses under the
circumstances presented here. 2 Moreover, during the pendency of the

2 Section 36-539(B) now provides:

The patient and the patient’s attorney shall be present at all
hearings, and the patient’s attorney may subpoena and
cross-examine witnesses and present evidence. The patient
may choose to not attend the hearing or the patient’s attorney
may waive the patient’s presence. The evidence presented by
the petitioner or the patient shall include the testimony of two
or more witnesses, regardless of the witnesses’ professional
licensure, if any, who observed or were acquainted with the
patient at the time of the alleged mental disorder before the
submission of the current application for evaluation
pursuant to [section] 36-520 or, if after the submission of the
current application, who were not formal participants in the
evaluation process. The testimony of the witnesses shall be
limited to observed facts and may not include expert
opinion or conclusions.

2025 Ariz. Sess. Laws ch. 20 § 1 (1st Reg. Sess.) (emphasis added).

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IN RE: MH2023-004502
Opinion of the Court

appeal, the court’s treatment order for A.R. expired. For these reasons, we
decline to address this issue as it is moot. As for the second issue, we hold
that because A.R. and M.G. did not have a behavioral health
professional-client relationship under § 32-3283(A), the related privilege
and confidentiality requirements do not apply to preclude M.G. from
testifying.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶6 A.R. has a history of mental illness. After A.R.’s mother
found him confused and unresponsive at home in May of 2023, she brought
him to the hospital. M.G. assessed A.R. to provide “level of care”
recommendations. Before the assessment, M.G. introduced herself to A.R.
as a “crisis interventionist.” M.G. further informed A.R. that their
conversation was subject to disclosure because it could result in a petition
for court-ordered evaluation, and ultimately a petition for COT.

¶7 Based on information from the assessment, M.G. applied for
an involuntary evaluation under § 36-520 and for an emergency admission
for evaluation under A.R.S. § 36-524. A.N., the medical director at the
agency that screened A.R., compiled these applications, along with a
“Witness Information Form,” and filed a petition for a court-ordered
evaluation. The superior court granted the petition, and, following that
evaluation, A.N. petitioned for COT under § 36-533.

¶8 Before the hearing on the petition for COT, A.R. moved to
preclude M.G. from testifying as one of the two acquaintance witnesses
required under § 36-539(B). A.R. asserted that M.G., a “licensed” social
worker, had engaged in the “practice of behavioral health” when she
conducted the assessment, rendering A.R. her “client.” See A.R.S.
§ 32-3251(7), (8), and (2). Accordingly, A.R. argued that the privilege and
confidentiality requirements of § 32-3283 applied to M.G. A.R. therefore
concluded that M.G. could not testify because he had not waived any
privilege and no exceptions to confidentiality applied. The State objected
to precluding M.G. because (1) M.G. “told the patient that their
conversations were not confidential for purposes of any mental health
proceedings and the COT process,” (2) “she had only one contact with A.R.,
which lasted for less than 1/2 hour,” and (3) “the patient proceeded to talk
to her after her warning.”

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IN RE: MH2023-004502
Opinion of the Court

¶9 At the end of the COT hearing in which M.G. testified, the
superior court considered and denied A.R.’s motion to preclude and
granted the petition for COT. In doing so, the court specifically referenced
M.G.’s “warning” to A.R. regarding the lack of confidentiality of their
conversation.

¶10 A.R. appealed, and the court of appeals, in a split decision,
vacated the superior court’s order. In re MH2023-004502, 258 Ariz. 556,
558 ¶ 1 (App. 2024). The majority concluded that, based on M.G.’s role in
her meeting with A.R., M.G. could not testify as an acquaintance witness
under § 36-539(B) because the meeting was subject to the privilege and
confidentiality requirements of § 32-3283 and no exception to
confidentiality applied. Id.

¶11 We note again, as did the court of appeals, that the
commitment order in this case expired during the pendency of appellate
review, rendering this case otherwise moot. Id. at 559 ¶ 9. Nevertheless,
given the frequency with which petitions for COT are filed, the important
liberty interests at stake in matters involving involuntary mental health
evaluation and treatment, and the likelihood of issues concerning privilege
and confidentiality under § 32-3283 recurring yet evading appellate review,
we exercise our discretion to consider the merits. In re Pima Cnty. Mental
Health No. 20200860221, 255 Ariz. 519, 523–24 ¶ 9 (2023) (explaining that
while this Court has consistently refrained from considering moot issues,
we will make an exception “‘to consider a question of great public
importance or one [that] is likely to recur.’” (alteration in original) (quoting
Fraternal Ord. of Police Lodge 2 v. Phx. Emp. Rels. Bd., 133 Ariz. 126, 127
(1982)). We have jurisdiction pursuant to article 6, section 5(3) of the
Arizona Constitution.

II. DISCUSSION

¶12 As questions of law, we review de novo issues concerning
statutory interpretation, State v. Zeitner, 246 Ariz. 161, 164 ¶ 8 (2019), and
“[t]he scope of the behavioral health professional-client privilege,” In re
MH2019-004895, 249 Ariz. 283, 286 ¶ 6 (App. 2020). When interpreting
statutes, we begin with the text. Franklin v. CSAA Gen. Ins. Co., 255 Ariz.
409, 411 ¶ 8 (2023). “We interpret statutory language in view of the entire
text, considering the context and related statutes on the same subject.”
Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019).

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IN RE: MH2023-004502
Opinion of the Court

Section 32-3283

¶13 A.R. challenged M.G.’s testimony on the basis that the
assessment she conducted occurred pursuant to a behavioral health
professional-client relationship and was thus privileged and confidential
under § 32-3283. In contrast, the State argued that no confidential
relationship existed because (1) M.G.’s contact with A.R. was too brief to
create a confidential relationship, (2) M.G. disclaimed any confidentiality,
and (3) M.G. did not provide A.R. with any behavioral health services.

¶14 In rejecting the State’s argument regarding the brevity of the
contact, the court of appeals’ majority noted that § 32-3283(A) states: “‘The
confidential relationship between a client and a licensee, including a
temporary licensee, is the same as between an attorney and a client.’” In
re MH2023-004502, 258 Ariz. at 563 ¶ 26. The majority, therefore,
concluded that there was no time requirement to establish a confidential
relationship between a behavioral health provider and a client. Id. ¶ 27.
Thus, it did not matter if M.G.’s meeting with A.R. was brief. Id.

¶15 The majority likewise found that M.G.’s purported disclaimer
was ineffective because it is the client who holds the privilege for purposes
of § 32-3283(A). Id. ¶ 29. Thus, in the absence of evidence that A.R. had
waived the privilege as required by § 32-3283, M.G. was prohibited from
testifying. Id. Although the majority’s conclusions on these two points
are generally correct, we disagree with the majority’s conclusion that a
confidential relationship existed between M.G. and A.R.

¶16 In determining whether M.G. and A.R. established a
confidential relationship, the majority first considered “the definitions of
closely related terms in A.R.S. § 32-3251.” Id. at 562 ¶ 21. It found that
M.G. was a licensed social worker who provided “behavioral health
services,” which include the “practice of social work,” to A.R. Id. ¶ 22;
§ 32-3251(9) (“‘Practice of behavioral health’ means the . . . practice of social
work . . . .”). From this, the majority concluded that A.R., who received
behavioral health services, was a “client” of M.G. IN RE: MH2023-004502,
258 Ariz. at 562 ¶ 22; A.R.S. § 32-3251(2) (defining “client” as one who
“receives behavioral health services” from a licensed provider).
Therefore, the majority determined that a confidential relationship existed
and that the information M.G. received from A.R. was “confidential and
therefore privileged.” IN RE: MH2023-004502, 258 Ariz. at 562–63

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IN RE: MH2023-004502
Opinion of the Court

¶¶ 23–25. In support of its conclusion, the majority further observed that
“[t]he [L]egislature made the scope of confidentiality between mental
health patients and licensed social workers ‘the same as between an
attorney and a client.’” Id. at 563 ¶ 26 (quoting A.R.S. § 32-3283(A)).

¶17 Section 32-3283(A) states:

The confidential relationship between a client and a
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.

¶18 A plain reading of § 32-3283(A) makes clear that the
confidentiality requirement presupposes the existence of a confidential
relationship: “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.” (Emphasis added.) And the
Legislature has declared this relationship to be the same as the
attorney-client relationship. Id. Therefore, when considering whether
information is subject to § 32-3283(A)’s confidentiality requirement, a court
must first determine whether a behavioral health professional-client
relationship exists just as a court would determine whether an
attorney-client relationship exists. The majority’s reliance on the
definitions in § 32-3251 to make this determination is, therefore, misplaced.

¶19 At the outset, we recognize the conceptual dissonance in
using the attorney-client relationship as an analogue to a behavioral health
professional-client relationship to determine the privileged nature of a
communication. In nearly all circumstances, an attorney’s client “look[s]
to the lawyer as a protector rather than as an adversary.” Paradigm Ins. Co.
v. Langerman L. Offs., P.A., 200 Ariz. 146, 149 ¶ 10 (2001) (quoting In re
Neville, 147 Ariz. 106, 111 (1985)). In the mental health care context, on the
other hand, the same may not generally be true, particularly if the
professional is conducting an evaluation that could lead to involuntary
treatment. See, e.g., § 36-531(B). Nevertheless, § 32-3283(A)’s directive is
unambiguous and controlling. See, e.g., In re Drummond, 257 Ariz. 15, 18

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IN RE: MH2023-004502
Opinion of the Court

¶ 5 (2024) (“When a statute’s plain language is unambiguous in context, it
is dispositive.”).

¶20 This Court recently set out a framework for analyzing
whether a communication is privileged in the context of an attorney-client
relationship in Clements v. Bernini, 249 Ariz. 434, 439–40 ¶ 8 (2020). Given
the Legislature’s directive in § 32-3283, we apply the Clements framework
to determine whether the information M.G. received from A.R. is likewise
privileged.

¶21 The Clements framework provides that “[i]n a dispute over
whether a communication is privileged, the party claiming the privilege has
the burden of making a prima facie showing that the privilege applies to a
specific communication.” Id. To do so, the party asserting the privilege
must establish that “1) there is a[] [behavioral health professional-client]
relationship, 2) the communication was made to secure or provide
[behavioral health services], 3) the communication was made in confidence,
and 4) the communication was treated as confidential.” Id. “Each
element of the privilege inquiry is fact specific.” Id. at 440 ¶ 9.

¶22 Whether a confidential behavioral health professional-client
relationship exists is initially a subjective inquiry and requires courts to
examine “the nature of the work performed and . . . the circumstances
under which the confidences were divulged.” Id. (alteration in original)
(quoting Alexander v. Superior Court, 141 Ariz. 157, 162 (1984)). Courts
examining the circumstances of the communication “must decide whether
the party consulting the [behavioral health professional] believes that he or
she is approaching the [behavioral health professional] in a professional
capacity and with the intent of securing [behavioral health services].” Id.
(quoting State v. Fodor, 179 Ariz. 442, 448 (App. 1994)).

¶23 Here, there is no evidence that A.R. intended to consult M.G.
for the purpose of securing behavioral health services. Indeed, A.R. was
not at the hospital voluntarily and did not initiate the interaction with M.G.
And, even assuming A.R. believed he was seeking such services, this belief
must be objectively reasonable. Paradigm Ins. Co., 200 Ariz. at 149 ¶ 10.

¶24 Two cases from the court of appeals, In re MH2019-004895, 249
Ariz. 283 (App. 2020), and In re MH2020-004882, 251 Ariz. 584 (App. 2021),
illustrate how to determine the objective reasonableness of such a belief.

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IN RE: MH2023-004502
Opinion of the Court

In each case, the court of appeals focused on three key factors: (1) the nature
of the interaction or services provided; (2) the length of the interaction; and
(3) any pre-discussion warnings.

¶25 In MH2019-004895, the court of appeals concluded that the
behavioral health professional-client privilege precluded a licensed
counselor from testifying as an acquaintance witness in a COT proceeding.
249 Ariz. at 285 ¶ 1. The court noted that the counselor and the client had
a pre-existing relationship, which the counselor acknowledged was a
confidential relationship. Accordingly, the court stated that there was “no
reasonable contention that she did not provide behavioral health services”
to the client. Id. at 287 ¶ 13. Furthermore, the counselor’s testimony was
based on observations she made both before and after the client was taken
to the hospital, and not in the context of conducting a preliminary
assessment of her patient. Id. ¶ 12. And there was no evidence that the
counselor had informed her client that any of their interactions, before or
on the day at issue, “fell outside the scope of a behavioral health
professional-client relationship or that [the client] consented to [the
counselor’s] disclosure of information acquired during such relationship.”
Id. ¶ 13. The pre-existing privileged relationship thus precluded her from
testifying. Id. at 289 ¶ 17.

¶26 Conversely, in MH2020-004882, the court of appeals
considered two consolidated cases in which social workers testified as
acquaintance witnesses at each respective patient’s hearing. The social
workers based their testimony on observations during preliminary
screenings conducted for the purpose of determining whether the patients
“needed to be evaluated by physicians for possible harm to themselves or
others.” 251 Ariz. at 585 ¶ 1. Both social workers informed their patients
that certain statements could be subject to disclosure.

¶27 The first social worker “warned [the patient] that the
confidentiality of their conversation had limits and told him that if he made
statements about harming himself or others, [the social worker] would be
required to report it ‘to the appropriate authorities.’” Id. ¶ 3. The second
social worker explained that “she would be asking questions to determine
if there was a risk [the patient] might harm herself or others, and that [the
patient’s] statements in response to those questions would not be as
confidential.” Id. at 586 ¶ 7. The court of appeals concluded that there
was no confidential relationship in either case where a behavioral health

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IN RE: MH2023-004502
Opinion of the Court

professional “interact[ed] with a patient only once to assess whether the
patient should be evaluated as a risk of harm to themselves or others
and . . . warned the patient at the outset that any statements the patient
ma[de] about harming self or others w[ould] not remain confidential.” Id.
at 585 ¶ 1, 587 ¶ 18.

¶28 Turning to A.R.’s interaction with M.G., the circumstances are
analogous to the interactions at issue in MH2020-004882. A.R. and M.G.
interacted only once during the assessment to determine whether further
evaluation was necessary. A.R. did not seek out M.G., they had no
pre-existing relationship, and their relatively brief conversation was limited
to general questions. Additionally, M.G. specifically warned A.R. that
their conversation was not confidential. Thus, under these circumstances,
any belief on A.R.’s part that he and M.G. had a privileged behavioral
health professional-client relationship is not objectively reasonable. 3

¶29 We therefore hold that because A.R. cannot establish that a
confidential relationship existed, any information received by M.G. from
A.R. is not privileged under § 32-3283. See Samaritan Found. v. Goodfarb,
176 Ariz. 497, 501 (1993) (explaining that “there must be a[] [behavioral
health professional-client] relationship before the privilege exists”
(emphasis added)); Alexander v. Superior Court, 141 Ariz. 157, 162 (1984)
(“When considering whether a confidence was received, we must first
determine if a[] [behavioral health professional-client] relationship
existed.” (emphasis added)). Accordingly, there is no need to consider

3 We remain cognizant of due process concerns in COT proceedings. See,
e.g., Addington v. Texas, 441 U.S. 418, 425 (1979) (“This Court repeatedly has
recognized that civil commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection.”); see also In re
MH-2008-000867, 225 Ariz. 178, 180–81 ¶¶ 8–9 (2010). Thus, any
pre-discussion warnings regarding confidentiality or the length of the
interaction may not be dispositive in determining whether a confidential
relationship exists. See Foulke v. Knuck, 162 Ariz. 517, 520 (App. 1989)
(“The fact that a consultation is relatively brief does not negate the
establishment of an attorney-client relationship.”).
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IN RE: MH2023-004502
Opinion of the Court

the remaining Clements factors or the waiver of any privilege under
§ 32-3283. 4

III. CONCLUSION

¶30 For the reasons set forth above, we vacate the opinion of the
court of appeals and affirm the superior court’s ruling.

4 Similarly, our resolution does not require us to consider whether M.G.’s
assessment of A.R. could ever constitute the “practice of social work” as
defined under § 32-3251(12).
11