Avoiding Liability Bulletin – December 2008
… The psychotherapist-patient privilege (in some states, the privilege is otherwise named) exists in most if not all states in order to protect the privacy of the patient or client. In general, the privilege belongs to the patient, and the patient has certain rights under certain circumstances to prevent their therapist or counselor from testifying in court or at a deposition, or from producing records when subpoenaed to do so. One of the questions raised by those who do group therapy or counseling is whether or not the psychotherapist-patient privilege is waived or compromised by the fact that there are multiple people in the room when the confidential communication is made. The answer depends upon state law and any judicial interpretations that may exist in case law.
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.
In the state referenced above, the law provides that the privilege statutes are to be liberally interpreted, so that the patient’s privacy is protected wherever possible. The law also recognizes that there may be joint holders of the privilege, and that 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. Thus, if a participant in group therapy or counseling were involved in a lawsuit, perhaps as a plaintiff, and if the opposing lawyer found out about this fact and subpoenaed the therapist or counselor to testify, the therapist or counselor would initially assert the privilege. Thereafter, the attorney for the plaintiff, together with his or her client, would decide whether the privilege was going to be claimed or waived. Sometimes the privilege may be waived as a matter of law, such as when the plaintiff puts his or her mental or emotional condition into issue in the lawsuit. In the absence of such a waiver by operation of law or otherwise, the participant (plaintiff) in group therapy does not typically lose the privilege because of his or her participation in group therapy. Since state law varies, practitioners must see how their particular state treats this issue.
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.