May/June Annals 2002

Privileged Communication
By Bruce Gross, M.B.A., J.D., Ph.D., DAPA

Maintaining the confidentiality of client communications is an ethical and legal responsibility for all mental health professionals. Confidentiality takes on a new dimension of accountability when applied in the context of legal proceedings. In a legal setting, confidentiality is referred to as “privilege” (or more formally as “testimonial privilege”) and has its roots in early Elizabethan law. In English courts, certain parties had the right, or privilege, to legally resist coercion and refuse to testify about certain “delicate” or embarrassing matters. Over time, English common law limited privilege to attorneys; in order to protect the effectiveness of the attorney-client relationship, a client was allowed to prevent his or her lawyer from testifying against him. It was not until 1828 that New York passed the first statute granting privilege to physicians. Over time, privilege grew to include not only the relationships between attorney-client and doctor-patient, but also those between husband-wife, psychotherapist-client and priest-penitent.

Today, most (but not all) states have laws providing for privilege in the relationship between licensed mental health professionals and their clients. In California, for example, the Evidence Code confirms and outlines privilege for psychotherapists. As not all states recognize privilege, practitioners should consult with an expert in their jurisdiction as to whether privilege exists. In either case, clients should always be informed of the meaning of privilege, its application and limitations.

In those states where privilege exists, it is held by the clients, securing their right to prevent confidential communications from being disclosed in the course of a legal proceeding (be it during a deposition, an administrative hearing or in a court of law). Specifically, when a client invokes privilege, the mental health professional is legally (and ethically) bound not to reveal any information learned from or about the client during the professional relationship. There are, however, certain circumstances in which privilege does not hold, independent of the client’s desire.

In addition to confirming privilege, state law also identifies those circumstances in which privilege does not hold, when the mental health professional must disclose the requested confidential information. While each jurisdiction varies in its specific exceptions to privilege, uniformly, a therapist is required to reveal and/or provide the sought material when a client waives privilege. By waiving privilege, the clients are giving their therapist legal permission to divulge otherwise confidential information. As holders of privilege, competent adults, custodians, guardians or parents of a minor or dependent adult are the only persons authorized to waive it.

In some jurisdictions, privilege does not exist in any criminal case in which the practitioner’s client is a defendant. In other courts of law, privilege is considered to be waived in criminal and civil proceedings only when clients enter their mental status as part of their defense, and/or when clients testify about some aspect of the otherwise privileged relationship. This exception extends to proceedings related to a malpractice suit against the mental health worker, initiated by the client. In some jurisdictions, there exists an exception to privilege when a practitioner initiates legal action against a client related to that client’s failure to pay his or her bill. In this circumstance, privilege is waived only for the information relevant to proving non-payment.

Other exceptions to privilege exist when the court has ordered a qualified professional to evaluate the defendant/

client in relation to the legal issues of competency or sanity. If, for any purpose, the client or the client’s attorney requests a psychological evaluation, privilege stands and the practitioner may not release any information without a signed release from the client. Typically, no privilege exists for court-ordered custody evaluations. In certain jurisdictions, an exception to privilege exists in family law cases when the court determines that the information a treating therapist can offer is crucial to deciding the case. Specifically, and regardless which member(s) of the family were treated, if the benefits of disclosure outweigh the potential damage, the best interests of the child override privilege.

A universal exception to privilege exists in proceedings involving the determination of a client’s dangerousness to self or others. Whether a past or current client at the time of the hearing, no privilege exists preventing the client from testifying or providing the court with requested information. It is important to note that a subpoena, in and of itself, does not waive privilege. A subpoena only compels the mental health professional to appear in court, generally with records; it in no way compels actual testimony or release of the records. Upon presentation, it is up to the court to determine whether the information sought by counsel falls under privilege and whether testimony will, in fact, be compelled.

As with confidentiality, privilege remains after the client’s death, although certain jurisdictions allow for exceptions. Most frequently, the exception is limited to the disclosure of information related to the disposition of the client’s property. As previously mentioned, privilege is first and foremost a legal issue and therefore, mental health professionals should refer to their state’s relevant laws rather than depending solely on information provided in their licensing board’s code of ethics.

Contact Dr. Gross at the University of Southern California, Keck School of Medicine, Department of Psychiatry, Institute of Psychiatry, Law and Behavioral Science, P.O. Box 86125, Los Angeles, CA 90086-0125, or by e-mail at [email protected].