J. Alexander Tanford
Professor of Law
Indiana University School of Law
211 S. Indiana Av
Bloomington IN 47405
1. Definition. "Privilege" is a question of evidence law. It gives the patient or client the right to prevent the therapist from disclosing confidential information.
It imposes no obligation upon the therapist to take the initiative in protecting the patient's confidences. The precise details of privileges --including whether
therapists other than licensed clinical psychologists and psychiatrists are included -- vary considerably from state to state.
2.0. Privilege belongs to patient. The therapist-patient privilege "belongs" to the patient. In legal terms, it is like a piece of property. Only the patient can establish the privilege and take the necessary steps to assert or waive it. The mental health professional (MHP) must take his or her direction from the patient.
3.0. What the patient says in a private therapy session. What the patient or client tells a therapist during a therapy session may or may not be privileged. To
be privileged to begin with, the patient must have intended the communications to be confidential, and they must have in fact been confidential.
3.1 Did the patient intend the session to be confidential? The answer often depends on why the patient came to the therapist. If the patient came to a MHP voluntarily to seek help for a mental or emotional problem, and/or has a regular, long-term therapeutic relationship with the MHP (e.g., is being treated for bipolar disorder) then the sessions are solely for the patient's private benefit and are almost certainly intended to be confidential. However, many people contact psychologists in connection with some particular legal problem -- they are involved in a divorce or custody dispute, they are being evaluated as potential adoptive parents, they have been raped and are pressing charges, or they are order to "get therapy" by a judge. In these cases, the patient probably expects some of the details of the therapy session to be disclosed in later legal proceedings, in which case there is no evidentiary privilege.
3.2. Was the session in fact confidential? There is no privilege if a relative attends the session, the FBI is lawfully wiretapping the session, or an undercover cop is actually present in the room. However, the presence of other people reasonably necessary for therapy itself does not affect the privilege. For example, if the therapist believes the presence of one or more family members is helpful, their presence does not affect the privilege.
4.0. Group therapy. In group therapy sessions, the presence of other patients is okay -- the privilege still exists.
5.0. General case notes. The MHP's file and case notes will be privileged if the underlying sessions on which they are based are privileged. They have no independent privileged status as the intellectual property or work-product of the therapist.
6.0. Test results. Test results (e.g., MMPI) are privileged to the same extent as a therapy session would be -- that is, if the test was conducted in confidence for a mental health purpose, the results are generally privileged. If the test was conducted to evaluate a patient or gather evidence in connection with a legal proceeding, it is not generally privileged.
7.0. Raw data. The raw data or scores created by tests such as the MMPI are only privileged if the results of the test are privileged. Despite the fact that raw scores can be misleading, the Rules of Evidence provide that facts or data in a particular case upon which an expert bases an opinion must be disclosed if the opinion itself is disclosed.
8.0. Child abuse cases. Even if a session is privileged originally, the privilege does not apply in child abuse cases. In most states, a mental health professional
must report acts of suspected child abuse to law enforcement officials.
9.0. Mental health in issue in a case. The privilege does not apply in cases in which the patient's mental health is itself a direct legal issue. Examples include child custody cases, civil commitment hearings, hearings concerning a defendant's competency to stand trial, and civil cases where the plaintiff seeks damages for emotional injury.
10.0. Disputes between co-patients. The privilege does not apply in litigation between two people present at a single counseling session, e.g., if a husband and wife come for joint marriage counseling and then sue each other for divorce.
11.0. Disputes between patient and therapist. The privilege does not apply if the patient sues the therapist for malpractice, or the therapist seeks a
restraining order against a former patient, etc.
12.0. Crime or fraud. The privilege does not apply if the patient is using the session in furtherance of an ongoing or future crime or fraud. Discussions ofpast crimes or wrongdoing are privileged, but not discussions of plans for future crimes or violence. In other words, much of what you see on "The Sopranos" would not be privileged.
12.1 Duty to warn. The famous 1976 case of Tarasoff v. Regents of Univ. of California established that when a therapist determines that a patient presents a serious danger of violence toward another person, the therapist must take reasonable steps to protect that person, including warning the victim and notifying the police.
Rules of thumb
13.0. State law varies. The exact contours of the privilege varied state-by-state. However, the following rules of thumb may help.
14.0. If lawyers need it, they'll get it. If the subject of the session is important to some court case, it's probably not privileged; but if it's merely tangential (a lawyer wants to harass a witness by bringing up his/her psychological history), then it's probably privileged.
15.0. It's not the therapist's decision. The lawyers and the patient have to worry about whether to assert the privilege, and a judge will decide whether the therapist does or does not have to testify. Making these decisions is not the responsibility of the therapist.
When the privilege is lost
16.0. Disclosure in general. If some or all of privileged material has already been disclosed, this may or may not affect the continuing privileged nature of the
material. The law is not concerned with who knows the information, but with whether it can be used at trial.
16.1. By patient. If the patient whose communications are at issue goes around telling people (other than spouses) the substance of what s/he told the therapist, or the results of tests, the privilege is waived and gone forever. On the other hand, if the patient tells others about his or her mental health in general, or talks about the same facts and events that s/he discussed at the session without revealing what was said at the session, the privilege remains intact.
16.2. By another patient. If another patient from a group session goes around telling people about what happened at the session, it is not a waiver of the privilege for the other patients.
16.3. By therapist. If the therapist goes to a cocktail party and after a few drinks, says, "Talk about crazy people, I had a weird session the other day, blah blah blah," it does not waive the privilege. The patient's communications are still privileged.
16.4. By therapist's staff. If a member of the therapists's staff calls a friend and says, "You'll never guess who's in there talking about his extra-marital affairs -- Bill Clinton!," the patient's communications are still privileged.
How to handle requests for confidential information
17.0. There is a difference between confidential information and privileged information. The fact that information should be kept confidential because it is in
the best interest of the patient is legally irrelevant. Lawyers operate under fixed rules of evidence and pretrial procedure that are created and enforced by
lawyers and judges who have probably know nothing about the therapist=patient relationship and don't care about the ethical guidelines of the APA. In general,
the lawyers fight among themselves over privilege issues, but there are four common situations in which a therapist gets dragged into the fight.
17.1. Requests by lawyers. If you get a request from a lawyer for information about a patient, you are under no obligation to provide it. You should in general refuse the request unless the lawyer has a court order or a waiver signed by the patient. If the lawyer claims to have either of these documents, demand a copy for your files.
17.2. Subpoena. A second common scenario is that you receive a subpoena requesting confidential information, followed by a telephone call from an attorney asking when s/he can pick up the material. You should handle this request exactly like an informal request in 17.1 -- refuse the request unless the lawyer has a court order or a waiver signed by the patient. A subpoena is not a court order, even if it contains a facsimile of the clerk's signature, it is just a fancy request by an attorney.
17.3. Questions during a deposition. During a deposition, a lawyer may ask you about confidential patient information. No judge is present at a deposition to rule on whether the infpormation is legally privileged. What should you do? If one of the lawyers present is the lawyer for the patient, ask him or her whether you should answer the question. If the lawyer says no, don't answer. The lawyers will not get mad at you, they will go fight it out between themselves down at the courthouse. If neither lawyer represents the patient, then you should assert the privilege on the patient's behalf, unless either lawyer can show you a court order or a signed waiver.
17.4. Questions during a court proceeding. If you are in a courtroom (with a judge present), and a lawyer asks you about confidential or sensitive information, what do you do? If one of the lawyers present is the lawyer for the patient, then it is the lawyer's job to object and assert the privilege. If s/he does nothing, answer the question. If s/he objects, the judge will either "sustain" the objection (don't answer), or "overrule" the objection (then you have to answer). If neither lawyer represents the patient, then you should assert the privilege on the patient's behalf, and ask the judge if you should answer the question. I would say, "I think that information is privileged," then turn to the judge and say, " Your honor, should I answer the question?"