In one state, for example, the law (statute) essentially makes clear that a confidential communication between a patient and a psychotherapist maintains its confidential character even though the communication is disclosed in the presence of others, as in group therapy or counseling. This is so only if the communication is disclosed to the others in the session and where such disclosure is reasonably necessary for the accomplishment of the purpose for which the psychotherapist is consulted. In other words, since each member of the group is present to further the other’s purposes in the group therapy or counseling, the confidential nature of the communication is not lost. Generally, it is the confidential communications between mental health practitioner and patient that become privileged.

… What happens when your patient dies and your treatment records are thereafter subpoenaed or you are subpoenaed to appear and testify in a legal proceeding? Does the psychotherapist-patient privilege survive the death of the patient? If so, who is the holder of the privilege in such a case? How is the therapist or counselor to react to the service of the subpoena? Depending upon state law, the answers will vary. And, in some cases, there may be complications.

With respect to the question of who is the holder of the privilege, and by way of example, California law says that if the patient is dead, the holder of the privilege is the personal representative of the deceased. This would typically mean that the executor or administrator of the estate of the deceased is the holder of the privilege (the person who may waive or assert the privilege on behalf of the deceased). What does the law in your state provide? Who holds the privilege after the patient dies? Does the privilege survive the death of the patient (in other words, is it still applicable)?

With respect to the question of how the therapist or counselor should react, each practitioner should be familiar with the laws and policies or procedures that govern how a practitioner is to respond when served with a subpoena for treatment records or for the practitioner’s testimony. I have previously written, in the Avoiding Liability Bulletin, several pieces on the subject of privilege that the reader can find by clicking on the Legal Resources tab and then the Bulletin Archive tab (at the CPH and Associates’ website), and then clicking on “privilege.” Again using California as an example (and there is good reason to do so), a psychotherapist would typically assert the privilege and resist disclosure of records until the holder of the privilege can express his or her desires and give direction to the psychotherapist, or until the court orders the therapist to disclose the records or to testify.

Depending upon the wording of the statute involved in the case of a deceased patient, ambiguous situations may arise that can complicate matters for the therapist or counselor. For example, how is the therapist or counselor supposed to determine whether there is a “holder” in existence? What if the practitioner has no idea whether the patient left a will or a trust at the time the subpoena arrives? If there was a will that named a personal representative of the deceased patient, may that person assert the privilege even though a probate court has not issued the necessary paperwork to officially confirm the appointment as executor (personal representative)?

It is not my intent to answer these questions – only to raise them. I raise them for the purpose of encouraging the reader to inquire into these issues now – so that if faced with a situation – as many practitioners have faced – where the patient suddenly dies (e.g., victim of a crime, in an accident, suicide, heart attack), the issue of privilege is not ignored. Often, when a patient suddenly dies, one or more family members will contact the therapist or counselor for any number of reasons. The issue, and duty, of confidentiality is then in the forefront. This piece deals with privilege – that is, your right and/or duty, consistent with state law, to initially assert the privilege and resist the production of records (or the giving of testimony) in a legal proceeding, should your records (or you) be subpoenaed.

Once the privilege is asserted, the search for the “holder” of the privilege will typically begin. During the period of time that the privilege is first asserted by the practitioner and the time when a holder of the privilege is found to exist, will the practitioner be forced to produce records or perhaps testify? Would the judge rule that if there is no holder of the privilege in existence then the privilege has been lost and the records must be produced and testimony given? How does the law treat these issues in your state?

RED FLAGS RULE

… Once again, the Federal Trade Commission has postponed the date when enforcement of the Red Flags Rule will begin. The new date has been set for June 1, 2010. I have previously written about the Red Flags Rule and its potential impact upon individual practitioners and others. See the June 2009 Avoiding Liability Bulletin. 

While I have written several articles in the Avoiding Liability Bulletin dealing with the psychotherapist-patient privilege, I have not yet directly addressed the issue of privilege when a therapist or counselor is treating a couple. The psychotherapist-patient privilege, or a similarly titled privilege, generally belongs to (is held by) the patient, or the guardian or conservator of the patient, which means that he or she may prevent the therapist or counselor from disclosing information (e.g., testifying or providing records pertaining to the treatment of the patient) in a legal proceeding, or may waive the privilege and allow such disclosure. But, what happens with respect to the privilege when a therapist or counselor is treating a couple? Does the privilege exist? If so, who is the holder of the privilege? How will the courts view a claim of privilege by either member of the couple or by both? How should the therapist or counselor respond to a subpoena for records or for the testimony related to either member of the couple? The answers to these questions follow.

The importance of the psychotherapist-patient privilege to the mental health professions cannot be over-emphasized. Without the existence of a privilege, a patient’s confidentiality would be jeopardized anytime he or she was involved in a lawsuit or other proceeding – the therapist or counselor’s testimony and treatment records could simply be compelled by subpoena. Legislatures throughout the country have established privileges for only a few special relationships – such as lawyer-client, priest-penitent, physician-patient, and psychotherapist-patient – in order to encourage consumers to obtain such services without the fear that their confidential and highly personal (sometimes embarrassing) information revealed in the course of those relationships might later be revealed in a courtroom. The existence of a privilege generally means that there exists an exception to the general rule of law that provides that no person has a privilege to refuse to be a witness or disclose any matter, or refuse to produce any writing, in specified legal proceedings.

Before proceeding further, I must issue my usual caution that state laws vary, sometime in fine nuance, so the reader must determine whether the law in his or her state differs (and if so, how it differs) from what is presented in this article. As stated above, the privilege generally belongs to the patient. It has been my position that if the therapist considers his/her patient to be the couple, then the couple is the holder of the privilege. Some commentators have indicated that the courts do not always agree with that position – that is, they do not recognize that the couple is the holder of the privilege. However, my experience in California indicates otherwise. While a judge may occasionally find that a privilege has been waived, or may erroneously rule that there is no privilege because the court is determined to consider relevant evidence and is willing to risk reversal on appeal, I have found that judges in California do recognize that a couple may be the holder of the privilege.

With respect to the questions asked above, it is first important to distinguish between true couple therapy, where the couple has been informed that the couple (as a unit) is the identified patient, and treatment of one patient (the identified patient) with collateral contact with the spouse or partner. I make the assumption that the practitioner involved in the particular state is recognized as being covered by the privilege. It is of course important to determine whether the law in your state recognizes that there may be joint holders of the privilege, and if so, the particular provisions. In California, for example, the law specifically recognizes that there may be joint holders of the psychotherapist-patient privilege. More specifically, the law states that where two or more persons are joint holders of the privilege, a waiver of the right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege.

If the law recognizes that there may be joint holders, then it would seem to me that the courts would readily recognize that each of the persons in couple therapy are covered by the privilege – and, that one cannot waive the other’s privilege and that each may claim or assert the privilege. If the state law is silent on the issue, it seems to me quite possible (and reasonable) that a judge could be persuaded to take the same position as above -- especially if there is an effective advocate for that position and no law provides otherwise. Perhaps two scenarios would be appropriate at this point.

1) Suppose that a therapist or counselor, covered by the psychotherapist-patient privilege (or similarly titled privilege) is treating a couple – doing couple therapy/counseling. Suppose that one of them, mildly depressed, is suing his surgeon for malpractice, alleging that the negligent surgery performed caused physical injuries and mental or emotional distress. Finally, suppose that the attorney for the defendant- physician subpoenas the records of the therapist or counselor.

2) A different case involves a couple going through a divorce, fighting over custody of their children, who were previously in couple therapy with a practitioner covered by the psychotherapist-patient privilege (or similarly titled privilege). Each of the participants in couple therapy were seen individually for one session – but they each acknowledged in advance that these individual sessions were to be considered as part of the couple work. In the custody proceeding, the husband’s attorney subpoenas the records of the practitioner after the practitioner refuses to release the records upon the signed authorization of only the husband.

In the first case, where the allegation is made that the negligent surgery caused mental and emotional distress to the plaintiff, it is likely that a court would rule that the psychotherapist-patient privilege, held by the patient, was waived (given up) by the plaintiff because he put into issue (he tendered) in the lawsuit his emotional and mental condition. The law would not allow him to attempt to prove that such harm was caused to him without allowing the surgeon (defendant) the opportunity to prove otherwise. The records and the testimony of the therapist may be relevant to the lawsuit and helpful to the plaintiff or the defendant, depending upon the circumstances. 

For example, perhaps the plaintiff mentioned the botched surgery on several occasions and that several sessions addressed some of the psychological effects of the surgery. The plaintiff may have also sought help from his own psychotherapist, who had several conversations with the couple’s therapist – documented in the couple’s treatment records. The couple’s therapist, however, upon receiving the subpoena, would typically assert the privilege, release nothing, and immediately contact the patient who is suing and the patient’s attorney. The practitioner would raise the issue of the partner’s privacy and the fact that the privilege is held by the patient – that is, the couple – and that one cannot waive for the other (assuming that state law and professional ethics would support or allow this position). The solution for the attorney for the plaintiff would be to either obtain the permission of the plaintiff’s partner to waive the privilege, or to seek a protective order of some kind so that only information pertaining to the plaintiff is revealed. Courts are able and willing to accommodate this kind of request, and will even be willing to allow the practitioner to redact, write a summary, or otherwise protect the privacy of the non-litigant partner.

With respect to the second case, the practitioner would typically and initially assert the privilege on behalf of the couple. Ultimately, the attorneys for the husband and wife would discuss the issue (arguing their own views based upon what’s good for the particular client) and come to some agreement – or they will litigate the issue. An interesting question in custody battles is whether or not a party puts his or her mental or emotional condition into issue by filing for sole custody of a child – and thereby waives the privilege. We need not decide that question here. Consistent with state law and with avoiding a contempt citation, the practitioner will want to create a record of resistance to disclosure unless or until both parties agree or the court issues an order deciding the claims of privilege or waiver. Practitioners typically do not get into trouble for resisting in good faith.

On the issue of the individual sessions, it would be my argument, and I would hope the court’s ruling, that these sessions should be treated like the conjoint sessions – they were part of the ongoing couple therapy or counseling. I would argue that the privilege belongs to the couple – even with respect to the individual sessions. Communications made in the individual sessions would likely involve material and issues that were discussed in the conjoint sessions. One holder of the privilege cannot waive for the other. The clarity of the practitioner’s disclosures regarding how these sessions are to be viewed, as well as the clarity of the patient acknowledgements should, in my view, be persuasive to the court – unless the law of the state does not allow for such a conclusion.

… Suppose that a therapist or counselor determines that his or her patient presents an imminent danger of serious physical violence to an identified other. And suppose further that the practitioner warns the intended victim (e.g., the patient’s supervisor at work) of the danger and notifies the police, but the violence nevertheless occurs. In the prosecution of the patient for murder, for example, the District Attorney may subpoena the practitioner to testify to both the specific communications with the patient that led the practitioner to make the warnings and to the specific warnings or notifications that were made. If the patient and the practitioner both asserted the psychotherapist-patient privilege, would a court uphold the claim of privilege or require the practitioner to testify when called by the District Attorney?

The argument in favor of upholding the privilege might be that the therapist or counselor abided by the relevant duty or authority to make the warning in order to protect another, and that the public policy of allowing or requiring a warning in order to protect the public was accomplished. Now that there is a trial, the privilege should be respected and the practitioner should not have to testify against his or her client. Arguably, the patient did not waive the privilege by any of his actions. Privileges are generally to be liberally construed so that the patient’s expectations of confidentiality and privacy are protected. The California Supreme Court rejected these arguments years ago when they decided a case in California involving the claim of privilege in a murder case much like the above example.

The Court (in a 4-3 decision) ruled that the therapist could be forced to testify as to the communications between the patient and the therapist that led the therapist to believe that the patient was a danger and to warn the victim, as well as the actual warning made by the therapist. In making its decision, the court relied upon the wording of the California statute, which states that there is no privilege if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger. The Court was, in essence, saying that the communications evidencing a danger to another or expressing threats against another were never privileged. Thus, the therapist could be forced to testify because of the inapplicability of the claim of privilege and because of the general rule that no person can refuse to be a witness and to testify (and produce records) about matters within his or her knowledge or control.

How would the law treat a similar matter in the state where you practice? Are you permitted or required to warn when the patient threatens serious and imminent harm to another? Would a claim of privilege be upheld if the patient was later prosecuted for harm caused to the victim, despite the warning from the treating therapist? While the question may not be easily answered, the practitioner’s first instinct should be to assert the privilege. Ultimately, the court will make its decision and the practitioner will usually comply with the court’s order.