Privilege of Keeping It Private

Kenneth I. Kolpan, JD (Editor)

A PREVIOUS column in JHTR (JHTR 4:3) addressed a therapist's wrongful disclosure of confidential information to an attorney without the patient's authority, making the therapist the possible target of a breach of privacy suit. Therapists can also be at legal risk for not disclosing patient information, even where the patient has not given permission to do so.

Health care providers believe that all conversations, recordings, and communications between themselves and patients are privileged and accorded protection by the law: Absent a patient's releases, information must be withheld. Providers may be surprised to discover that many professional relationships are not sanctioned as privileged by state legislators.

States make a distinction between confidential communications and privileged communications. The former are not given a recognized right of privacy, while the latter are given protection. By way of example, the Massachusetts legislature has declared that a certain category of therapists, licensed physicians performing substantial portion of their work in psychotherapy, licensed psychologists, and licensed social workers are given legal protection in that their discussions will likely be private.

But other therapists are not so protected. A rehabilitation counselor who is not licensed to perform psychotherapy may erroneously believe that conversations are sacrosanct, but there may not be a state law supporting a claim of nondisclosure. If a state law creates a privilege, then patient and therapist know how private their sessions are. A state law would define which therapists are covered, what type of communications are protected, and under what circumstances the confidences can be revealed.

A statutory privilege that says written or oral communications between a psychotherapist and a patient cannot be disclosed does not mean that all conversations between the two are absolutely protected. Psychotherapists and patients are often surprised to discover that under certain circumstances the content of their therapy sessions must be disclosed. Most statutory privileges have exceptions requiring disclosure, such as in child custody cases, where disclosure is necessary to commit a person to a mental hospital, or where mental illness is an issue or a defense in a civil or criminal matter. Under these exceptions, neither the patient nor the therapist can legally withhold information about private conversations. A therapist may be compelled to reveal patient information and a patient will not be able to sue for breach of privacy if the exceptions apply.

Even without the exception the privilege is not absolute, because the privilege is held by the patient, not the therapist. if the patient waives the privilege, then the therapist may be in the untenable position of having to disclose information that he or she would otherwise keep private. A therapist may claim that compelled disclosure undermines trust in a therapy relationship, but the court will order disclosure where the patient has authorized it. An unwilling therapist faces the possibility of contempt of court order and possible imprisonment.

Health care providers and patients often have an expectation that treatment is a private matter between them; they may be surprised to find out that the law does not always agree.