Supreme Court rules on counselor-patient privilege

TOPEKA—Saying the question is simple, but the answer complex, the Supreme Court today unanimously ruled there is no counselor-patient privilege in a murder prosecution unless the counselor is licensed, even though the defendant may have reasonably believed the counselor was licensed.

The decision, which was written for the court by Justice Bob Abbott, paves the way for the prosecution of Thomas A. Berberich, who is accused of kidnapping and first-degree murder in the 1979 slaying of 12-year-old John "Jack" Hanrahan, whose body was recovered from a creek in Osage County near the Shawnee County line.

The slaying remained unsolved for the next 10 years until Berberich allegedly admitted the murder to Dr. Don Strong, who was not a licensed counselor at the time of the 1989 sessions with Berberich. The state filed the murder and kidnapping charges on January 30, 1998, nearly nine years later.

The Osage County District Court suppressed the statements Berberich made to Strong as "confidential communications."

"The issue is simple," Justice Abbott wrote in today's decision. "The answer is complex. Dr. Strong was not a licensed counselor when the alleged statements by Berberich were made. By statute, confidential relations and communications between a licensed professional counselor and a counselor's clients are privileged. The question before us is whether the legislature...intended to grant a privilege concerning communications between a client and a person who the client reasonably believes is a person licensed as a professional counselor." The court ruled it did not.