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Justices weigh confidentiality for unlicensed social workers

January 13, 2017

The justices of the Indiana Supreme Court are deciding whether they should answer the legal question of whether communications with an unlicensed social worker are considered privileged and confidential.

In oral arguments before the high court Thursday in James Rogers v. State of Indiana, 49A02-1508-CR-01033, Deputy Attorney General Ellen Meilaender argued for the state that the Legislature had never intended for communications with a non-licensed social worker to be excluded from confidentiality when they drafted Indiana Code 25-23.6-6-1.

The issue stems from the deposition testimony of Amy Wallace, an unlicensed social worker who provided social services at Shepherd Community Center in Indianapolis to B.L., an alleged victim of molestation by her uncle, James Rogers. During deposition, Wallace refused to answer four questions from Rogers’ counsel, citing to I.C. 25-23.6-6-1 as a legal basis for why she could not answer. Rogers sought to compel the testimony, but the trial court denied the motion.

The Marion Superior Court agreed with Wallace, but the Indiana Court of Appeals reversed and held that the “counselor” privilege under state code applied only to social workers. http://www.theindianalawyer.com/unlicensed-social-worker-must-answer-accused-molesters-questions/PARAMS/article/40812 Although Wallace has a degree in social work, she is unlicensed.

In her argument for the grant of transfer, Meilaender first argued the phrase in the privileged communications statute reading “who is licensed under this article” is only applicable to the profession directly preceding it because there is no comma separating that phrase from the rest of the sentence. And because the profession of social work is not the direct antecedent to the licensing phrase in the statute, the Legislature did not intend for only licensed social workers to be protected, Meilaender said.?

“Does anyone believe that that’s really how we use the English language?” Justice Geoffrey Slaughter asked.

In response, Meilaender pointed to the U.S. Supreme Court decision in Lockhart v. United States, 577 U.S. (2016), in which the Court held that the antecedent rule was a “sensible grammatical principle.”

But Chief Justice Loretta Rush said the Indiana Supreme Court does not generally look favorably upon that grammatical construction and instead implied that a stronger argument for the state’s case could be found in I.C. 25-23.6-4-2, which states that an unlicensed person performing social work can be exempt if they are performing charitable, religious or educational services or pastoral counseling, similar to the work done at Shepherd, which is a religious organization.

Meilaender agreed and said the statute Rush mentioned works together with the antecedent rule to prove that Legislature intended to protect communications between clients and unlicensed social workers.

But Michael Smith, counsel for Rogers, said licensure is the thread that runs throughout I.C. 23.6 and is the mechanism by which the state regulates social workers to ensure that people who receive help from a social worker are assisted by someone who is qualified.

Justice Steve David sought clarification on that point, asking Smith whether he believed having a license automatically improved the quality of service. Smith said he did not necessarily believe that but instead said he was countering an earlier argument from Meilaender in which she implied that a social worker could not provide high-quality services if a client’s right to privacy was not guaranteed.

Greg Guevara, speaking on behalf of Shepherd Community Center as amicus to the state’s case, echoed that thought and also added an economic argument.

If only licensed social workers are protected under the statute, then people seeking full confidentiality will have to pay more to work with someone who has the appropriate licensure, Guevara said. That system would create two classes of people, the attorney said – one class wealthy enough to pay for confidentiality, and one class subject to the possible disclosure of their personal struggles.

Even so, Smith told the justices that the information sought from Wallace was provided to her by other people working at the center, not her client. So even if a privilege for unlicensed social workers did exist, it could not apply here, he said.

Thursday’s oral arguments can be viewed here.

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