Psychotherapist-Patient Privilege

DO YOU HAVE TO TESTIFY? IS THERE A PRIVILEGE? HAS IT BEEN WAIVED? AN ANALYSIS   OF PRIVILEGE FOR PSYCHOTHERAPISTS
By Leisa M. Wintz, MS, Esq.The general rule in psychotherapist-patient relationships is that the content   of the therapy sessions are confidential – in other words, a privilege exists   that allows the therapist to not have to submit themselves to the general   legal rule that a person should testify to what they know. “Privileges” are   given to a variety of professions in order to protect some societal interest.   For example, with therapists, the privilege exists so that an individual will   feel free to communicate their inner most thoughts, concerns, feelings   without the threat of that coming back to harm them in the future.

As it relates to psychotherapists, the first hurdle in analyzing whether or   not you will have to testify upon request, is to determine whether there was   a privilege in the first place. In order for there to be a privilege you must   have the following elements 1) a confidential communication or record, 2)   which was made for the purpose of diagnosis or treatment of a mental or   emotional condition, 3) made by a patient, 4) to a psychotherapist.
Going through each of these you must analyze each one on the specific facts   of a case:
1) Was the communication confidential? Meaning was there an expectation of   privacy? Confidentiality exists if the communication is not intended to be   disclosed to third persons, with certain exceptions. If the statement was   made in a public location, or with affirmative knowledge that the information   would be transmitted to others you may not get past this hurdle and therefore   you could be compelled to testify to this information. One example that   commonly applies as to this element is when counseling or evaluations are   Court Ordered and the order specifies that the outcome, results, records, or   reports shall be relayed to the courts. Under these circumstances no   privilege exists because the element of confidentiality has not been met . Another   common question which relates to this element is whether having others in the   therapy room void confidentiality. The answer is normally no. Confidentiality   is not voided because others participate in the therapy session.
2) Was the statement / communication made for the purpose of diagnosis or   treatment of a mental or emotional condition. If the statement or   communication took place for some other purpose, such as medical treatment,   for educational purposes, or related to mundane items such as a person’s   contact information , it may not be privileged.
3) Was it made by a patient? The statue tells us that a “patient” is a person   who consults, or is interviewed by, a psychotherapist for purposes of   diagnosis or treatment of a mental or emotional condition, including   alcoholism and other drug addiction. This means that privilege could exists   before a formal hiring takes place and might remain in effect after the   formal termination of a relationship.
4) Was it to a psychotherapist? The professional must be licensed as a LSCW,   LMFT, LMHC or have provisional licensure as an intern.

You might think that once you have determined that the communication is in   fact “privileged” that your analysis is complete and you cannot be forced to   testify to the communication or to submit records from such communication –   but it is not, not yet. Once you know a privilege exists you must determine   whether 1) the communication is an exception to the privilege or 2) whether   the privilege has been waived.
Regarding element (1) of this analysis, there are several common exceptions   to privilege.It is likely that you are familiar with the first two   exceptions. They are child abuse and elder abuse. Another exception is in   Baker Act proceedings where there are allegations of self-harm or harm to   others.

A less frequently discussed, but very important exception, is when the   patient has relied on his or her condition as a part of their legal claim or   defense. This was seen in the case of Critchlow and Critchlow (347 So.2d 453,   3rd DCA 1977) where the wife filed a Petition for Dissolution of Marriage and   claimed therein that she was “a fit and proper person” to have custody of her   3 year old child. After filing the pleading she voluntarily submitted herself   for mental health treatment and the Court allowed the treating professionals   to be deposed. This does not mean that every parent seeking custody falls   into an exception to privilege but instead that there are some fact patterns   where that may well be the case.

The last way to circumvent privilege is by a waiver. Privilege must be   asserted in a timely fashion or it will be waived. This is very important.   The privilege may be asserted by the patient, the psychotherapist, or a   lawyer, so long as the person asserting the privilege is doing so “on behalf”   of the patient and not for a self-serving purpose. (It is for this reason   that a parent may not be able to waive the privilege on behalf of their   child. This will be the topic of a future article entitled Children’s Rights   in Therapy.) If a person fails to assert the privilege then a waiver will   have been deemed to have occurred and the therapist MUST then testify and /or   release records.

In any of the circumstances discussed, where a) no privilege existed because   an element of the claim was missing b) an exception to privilege exists or c)   a waiver has occurred the therapist must testify and or release records   related to the treatment.

My office offers free consultation to professional therapists with legal   concerns regarding confidentiality, general business, ethical and legal   requirement of testimony. We also offer free consults to clients with   specific legal needs. We have attorneys who practice exclusively in each of   the following areas:
• Small Business Law
• Mental Health Law
• Family Law, Dependency & Adoption
• Bankruptcy
• Real Estate Law
• Landlord Tenant