The mental health professional MHP must take his or her direction from the patient. What is privileged? 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. The answer often depends on why the patient came to the therapist. 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. 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. Group therapy. In group therapy sessions, the presence of other patients is okay -- the privilege still exists.
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. Test results. Test results e. If the test was conducted to evaluate a patient or gather evidence in connection with a legal proceeding, it is not generally privileged.
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.
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. 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.
Disputes between co-patients. With respect to the right of a patient to inspect or to obtain copies of the records, there may be certain restraints upon access when the identified patient is more than one person. Suppose that a couple is being treated and that they subsequently break up.
Should either one of the participants in the therapy be entitled to a copy of all of the treatment records upon their individual request or demand? I think not. It is my view that neither party should be entitled to the records unless there is authorization granted by both parties.
For those who think likewise, it is important, as I have said in prior articles, to inform the couple or the family unit about your view of who the patient is, and how that gets implemented with respect to release of records, privilege, and access to the records. It is important to remember that each state has different laws with respect to these matters, and those laws, to the extent that they differ with my views or with ethical standards that may apply, must be obeyed. 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. 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. 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 , 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.
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. In order to protect clients' ethical right to privileged communication , legislative action must create the legal entitlement. Physician —patient privilege is a legal concept, related to medical confidentiality, that protects communications between a patient and their doctor from being used against the patient in court.
In some jurisdictions, conversations between a patient and physician may be privileged in both criminal and civil courts. The relative influence of business interests in the formulation of public policy is disputed, and empirical results remain inconclusive. Business has a privileged position but only on its home turf. This protects confidential communications between a client and his or her legal adviser for the dominant purpose of legal advice.
The rationale is that clients ought to be able to communicate freely with their lawyers, in order to facilitate the proper functioning of the legal system. The work product doctrine states that an adverse party generally may not discover or compel disclosure of written or oral materials prepared by or for an attorney in the course of legal representation, especially in preparation for litigation. When creating a privilege log , young lawyers should consider the following tips to prepare a proper log : Identify the fields to include in the privilege log.
As a general rule, parties waive attorney-client privilege when disclosing a privileged communication to a third party and waive work - product protection when sharing protected materials with an adversary.
Such waivers may provide third-party litigants with an avenue to access otherwise protected files. Similarly, not every email from your lawyer will constitute attorney work product.
Typically, the communication must contain an attorney's mental impressions, analysis or opinions to constitute attorney work product. Privileged documents Documents such as contracts , employee records, maintenance records and work systems will not be privileged , even if they have been given to the company lawyer for the purpose of providing legal advice or for litigation. An investigation report may be privileged in whole or in part depending on the circumstances of its creation, including whether the report was drafted by or at the direction of counsel, whether the report contains any legal advice and whether the report was drafted for the purpose of responding to or commencing.
Opinion work product is the record of an attorney's mental impressions, ideas or strategies, and is almost never subject to discovery. The attorney - client privilege provides absolute but fragile protection.
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