AVOIDING LIABILITY BLOG

A Common Waiver

May 2008

… 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.

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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