Avoiding Liability Bulletin – May 2005
… 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.
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.