Privilege - A Common Waiver
(May 2008
, Volume 1)
… The psychotherapist-patient privilege is an
important aspect of patient privacy. As has previously been written about in
these pages, the privilege generally “belongs” to the patient and can be
claimed (asserted) or waived by the patient. It is different from
confidentiality. Privilege involves the right to withhold testimony in a legal
proceeding. The privilege, however, is not absolute. Thus, there are times when
the privilege may not apply – such as, when the patient has put into issue in a
lawsuit his or her mental and emotional condition. This typically occurs when
the patient alleges that he or she suffered mental and emotional distress as a
result of the negligence of the defendant.
While this is primarily a legal issue
affecting the introduction of evidence, it is important for practitioners to be
aware of this exception. Patients or clients will often be surprised when they
learn that a subpoena has been served for their records or the therapist’s
testimony, and when they are for the first time informed that they have waived
the privilege by making the assertions they make in the complaint (the formal
pleading). They will sometimes call and express concern or outrage. The practitioner
may need to encourage the patient to talk with the patient’s attorney to fully
understand why it may be necessary to divulge what was thought to be protected
and private. Also, the practitioner may want to alert the patient or the
patient’s attorney to the existence of material in the file that may be “highly
charged.”
In most, if not all, states, it is possible for the
patient’s attorney to seek a protective order in order to suppress disclosure
of particularly sensitive matters. This can be done in situations where the
information is highly embarrassing or prejudicial, but of little probative
value. While each case is different, be assured that the lawyer on the other
side of the issue will likely argue against the issuance of a protective order.
In such situations, it is important for the practitioner to be aware of the
content of his or her records, and to alert the patient to the fact that
disclosure may be compelled because of the apparent waiver of the privilege by
the allegation in the lawsuit of mental and emotional distress or psychological
harm.
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