No Privilege in Indiana for Unlicensed Social Workers

Last July, the Indiana Court of Appeals decided Rogers v. State, 60 N.E.3d 256 (Ind. Ct. App. 2016), in which the attorney for a criminal defendant had deposed an employee of a charitable organization who held a degree in social work from an accredited university but not a license from the Behavioral Health and Human Services Licensing Board of the Indiana Professional Licensing Agency. The attorney for the organization advised the social worker not to answer certain questions on the grounds that the information was subject to the privilege for communications between a social worker and her client. The defendant filed a motion to compel the social worker to answer the questions, and the court denied the motion. The court gave the defendant permission to file an interlocutory appeal with the Indiana Court of Appeals, which reversed the trial court’s decision, holding that the privilege does not apply to unlicensed social workers. The State sought transfer to the Indiana Supreme Court, which held oral argument before denying transfer. Because transfer was denied, the decision of the Court of Appeals is now final.

Ind. Code 23-25.6-6-1 provides that, with some exceptions, a “counselor” cannot be compelled to disclose communications with a client. Counselor is defined by Ind. Code 25-23.6-1-3.8 as “a social worker, a clinical social worker, a marriage and family therapist, a mental health counselor, an addiction counselor, or a clinical addiction counselor who is licensed under this article.” The question put to the Court of Appeals was one of statutory interpretation: Does the phrase “who is licensed under this article” apply to all six professions in the list, or does it apply only to the last one, clinical addition counselors?

In arguing that the modifying phrase applied only to the last item in the list, the State relied in part on a canon of statutory construction (i.e., a rule a court sometimes uses as a guideline for interpreting statutes) called the doctrine of the last antecedent, which says that when a list of nouns is followed by a modifier, the modifier is presumed to apply only to the last one in the list (i.e., the “last antecedent”) unless there is a comma between the last item and the modifier. Because there is no comma between “clinical addiction counselor” and “who is licensed under this article,” the State argued, the phrase does not apply to “social worker.” Therefore, an unlicensed social worker is within the definition of “counselor;” and the privilege applies.

However, canons of statutory construction are not ironclad rules, and courts will disregard them when there are other indications that the legislature had a different intent. In deciding the question, the Court of Appeals rejected the application of the last antecedent doctrine, in part by examining the history of the statute and finding evidence that the general assembly did not intend for the modifier to apply only to the last item in the list. Thus, the Court concluded, the phrase “who is licensed under this article” applied to every item in the list. Therefore, an unlicensed social worker is not in the definition of “counselor;” and the privilege does not apply.

In asking the Supreme Court to take up the case, the State argued primarily that the Court of Appeals had not given sufficient weight to the fact that the social worker in this case fell within a licensing exemption for employees and volunteers of charitable organizations. The State argued that exemption reflected a policy decision by the General Assembly to make it easier for charitable organizations to provide social work services to their clients and that denying the privilege to an unlicensed social worker employed by a charitable organization would undermine that policy. The State argued that, by doing so, the Court of Appeals had relegated clients of charitable organizations to the status of “second class citizens.”

In response, Rogers argued, among other things, that the Court of Appeals decision did not create a second class of citizens and, indeed, assured clients of charitable organizations the same benefit that the licensing requirement extends to clients of other social workers, i.e., a safeguard against qualified, competent, or ethical social workers. Rogers also argued that Indiana courts interpret statutes to establish harmonious statutory schemes, and that a privilege for unlicensed social workers was inconsistent not only with the statutory history but also with several other statutory provisions. Finally, Rogers pointed out, if the Supreme Court were to overrule the Court of Appeals, Indiana would stand alone because no other state has extended a privilege to unlicensed social workers merely because they work for charitable organizations.

In keeping with its usual practice, the Supreme Court did not explain why it decided to deny transfer, so we do not know exactly what the court thought of the relative merits of the opposing arguments, only that it decided to allow the Court of Appeals decision to stand.


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