Avoiding Liability Bulletin – November 2010
… 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.
ABOUT THE AUTHOR
"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.