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DO YOU HAVE TO TESTIFY? IS THERE A PRIVILEGE? HAS IT BEEN WAIVED? AN ANALYSIS OF PRIVILEGE FOR PSYCHOTHERAPISTS

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[1]. 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[2], 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

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[1] I strongly advise that your therapy agreement in court ordered counseling have a provision related to this legal element and a description be included of what may be testified to. [2] These are just a few examples of many where this element may not be met.

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