Privileged Communications
(April 2005
, Volume 1)
… It is critical for counselors and therapists to know whether or not they are covered by the psychotherapist-patient privilege (or a similarly named privilege). Generally, the privilege is created for certain relationships that the Legislature recognizes in law (e.g., lawyer-client, physician-patient, priest- penitent). Privilege is different than confidentiality. Privilege involves the right and duty to withhold records and testimony when subpoenaed in a legal proceeding. Those covered by the privilege are generally under a duty to assert the privilege on behalf of the patient, unless the patient waives the privilege or unless the judge orders otherwise.
… It must be remembered that the privilege (like the duty of confidentiality) generally survives the death of the patient. While the patient (now deceased) is no longer the holder of the privilege, the law usually specifies who the holder is – such as, the personal representative of the deceased, perhaps the executor. Therapists may have to assert the privilege (and refuse to release records) until the holder requests otherwise.
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Privileged Communications
(May 2005
, Volume 1)
… Assuming that the psychotherapist-patient privilege (or similarly titled privilege) exists in your state for your license or certification, who is the holder of the privilege when you are treating a minor? Is there a different answer if the minor patient is six rather than sixteen? In some states, the answer is that the child, regardless of age, is the holder of the privilege, since the child is the patient. Thus, therapists would be duty bound to assert the privilege and resist releasing the minor’s records pursuant to a subpoena from one of the parents in a custody or visitation dispute, for example.
If the court has appointed an attorney to represent the interests of the minor during the custody or visitation dispute (perhaps called a “guardian ad litem” or some other name), the attorney will likely be able to exercise the privilege on behalf of the minor. Check this out in your state. Remember, we are not talking about confidentiality and which parent signs an authorization form on behalf of the child, but rather, we are talking about privilege – which involves the right and duty to withhold records and testimony in a legal proceeding – until the privilege is waived (by the “holder”) or the court orders otherwise.
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Privileged Communications
(May 2005
, Volume 2)
… If you are covered by the psychotherapist-patient privilege or a similarly titled privilege, be sure to find out if the privilege exists in criminal proceedings as well as civil proceedings. This is most important in cases where the patient may be the victim of a rape. If the privilege applies, the defense attorney should have a difficult time obtaining psychotherapy records, even upon subpoena. While there are times when a judge may rule that the privilege must give way, the general rule is that as long as the patient hasn’t put her mental condition into issue in the legal proceedings, the privilege applies.
Suppose the patient begins to see a therapist after the rape and in order to deal with the emotional harm caused by the criminal act. In such a case, the defendant’s attorney may seek the treatment records in order to see if they contain any information that may assist in the defense of the accused. If the privilege exists in criminal proceedings, the defense attorney should generally be unable to obtain either the treatment records or the testimony of the therapist.
If the patient was in therapy before the rape occurred, the privilege should still exist, although in some cases (such as where the patient suffers from a serious mental disorder) the defense will argue that the records may contain proof that the patient cannot distinguish between fact and fantasy, and that the privilege has to give way to the constitutional right of a defendant to confront the witnesses against him. Until the court rules on the question, the therapist must be ready to assert the privilege on behalf of the patient. The prosecutor’s office will often be helpful, since they typically don’t want to see their key witness come under attack by the defense.
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