Privileged communications examined

By Edward Stern J.D.
April 1st, 2012

Societies have provided in law a number of privileges. According to Black’s Law Dictionary, Fifth Edition, a privilege is “a particular and peculiar benefit or advantage enjoyed by a person, company or class, beyond the common advantages of other citizens. An exception or extraordinary power or exemption, a right, power or exemption, a right, power, franchise or immunity held by a person or class, against or beyond the course of the law.”

There are many privileges including protection for ambassadors, public officials and defendants in criminal cases. Privileges can arise by treaties, statutes and the Constitution.

Privileged communication is a topic of relevance to psychologists. Common privileges include husband-wife privilege, doctor-patient privilege, priest-penitent privilege and attorney-client privilege. (Note: most states do not have a parent-child privilege). Each privilege comes from a unique history, but is recognized today in law by statute or case law.

The underlying and common thread belief in each of these privileges is that there is an advantage for society to protect the substance of the communication between the participants in each of these identified relationships. Society wants people to feel safe to disclose their thoughts, beliefs, needs and fears within these relationships.

The history of each privilege has evolved over time. For instance, the husband-wife privilege is very different today from its centuries-old common law roots.

For psychotherapists, there is a psychotherapist-patient privilege, which is covered by statute in the states. The Supreme Court of the United States recognized a psychotherapist-patient privilege in court, the case of Jaffee v. Redmond, 518 U.S. (1996). Some states may vary as to which psychotherapists are covered by the privilege: psychiatrists, psychologists, social workers, counselors or others.

In addition to which relationships are covered by the privilege there are other questions to be considered. These questions include:

• What is covered by the privilege? Communications are covered. These may be written or oral.

• When are these communications covered? They are covered whether delivered in a session or not.

• Whose privilege is the communication? It is the patient’s privilege.

As a general rule only a patient can waive the privilege. There are exceptions to this general rule. The exceptions to the privilege include:

• The patient waives the privilege. It is essential to get this waiver in writing.

• A court waives the privilege. This situation requires a judge to specifically order the psychotherapist to testify, thus protecting the psychotherapist. Be careful, when receiving a subpoena for information, contact the patient. The best protection is to receive a release of records, in writing from the patient. Without receiving this release, ask the court to specifically order you to provide the information before responding to the subpoena.

• A statute requires disclosure in order to protect a vulnerable person within a protected class of people. This issue is often described as “mandatory reporting.” These statutes usually protect against on-going child or elder abuse.

• Your disclosure stops possible future crime or act of violence This latter situation is usually referred to as the Tarasoff exception. There’s a duty to protect against future harm which supersedes the privilege.

A privilege is important in the law and to society. A breach of a privilege may result in a civil action and a possible disciplinary action. Sometimes it is important to seek a legal opinion in a particular matter before deciding what to do.

Edward M. Stern, J.D., has a private law practice in Newtonville, Mass., Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

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