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AN ANALYSIS OF PRIVILEGE FOR PSYCHOTHERAPISTS

To begin with you always, always want to consult an attorney who has experience in this area of law when presented with a question about confidentiality due to liability concerns. The general rule 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. With therapists, the privilege exists so that an individual will feel free to communicate their innermost thoughts/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 go through the following analysis 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. 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 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? 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. 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. See the next blog post for more a continuation of this topic.

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