Privilege Overview in Legal Proceedings
Privilege Overview in Legal Context
Definition of Privilege
Privilege refers to the client's legal right to maintain confidentiality regarding their information during legal proceedings. This right protects sensitive information from being disclosed, thus ensuring the client can speak freely in therapeutic settings.
Who Holds Privilege?
Privilege is held by several parties within the therapeutic environment, including:
The client, irrespective of their age.
All members involved in the treatment unit, which includes therapists and assistants.
A guardian ad litem or conservator, who may act on behalf of clients who are unable to represent themselves.
If the patient has passed away, privilege is held by the personal representative or executor of the deceased's estate.
Exceptions to Privilege
There are specific circumstances under which the privilege may not apply. The following outlines ten exceptions:
Emotional Condition Introduced in Legal Proceedings: If the client introduces their emotional condition as an issue in a legal proceeding, privilege is waived regarding that information.
Confidential Information Treated as Non-Confidential: If the client behaves as though the confidential information is not private (e.g., sharing it with third parties), privilege may not be upheld.
Breach of Duty: In cases where the client files a malpractice lawsuit against the therapist or vice versa for non-payment, the content of therapy remains confidential, but privilege is compromised.
Court-Appointed Examination of the Client: If the court directs a therapist to evaluate the client, the privilege may be overridden during that examination.
Psychotherapy to Commit or Escape Punishment for a Crime: If the client sought therapy with the intent to commit a crime or to avoid punishment for a crime, privilege does not apply.
Minor Victims of Crimes: If the client is under 16 and a victim of certain crimes (e.g., extortion or statutory rape), the privilege may be overridden.
Sanity Determination Proceedings: When a defendant requests a court proceeding to determine sanity, privilege is disregarded.
Dangerous Mental Condition: If the therapist believes the client poses a threat to themselves or others, they are permitted to disclose information to prevent harm.
Competence Establishment Proceedings: In situations where a client initiates proceedings to establish their competency, privilege may not apply.
Coroner Investigations: When a coroner requests information relating to deaths under public health concerns, abuse, or criminal circumstances, the privilege must be set aside.
Responding to a Subpoena
When a subpoena is issued, whether by a lawyer or a judge, the therapist must take the following steps:
Contact the Client: The therapist should reach out to the client to discuss the subpoena's implications.
Assert Privilege if Client is Unreachable: If the client cannot be contacted, the therapist should assert privilege on behalf of the client.
Client Waiver of Privilege: If the client chooses to waive their privilege, they must sign a waiver document to authorize the therapist to disclose the information.
Exception Handling: If the therapist perceives the matter as an exception to privilege, they should still assert privilege and allow the court to resolve the matter.
Impact of Client's Welfare: If a client seeks to waive privilege but the therapist believes such action could harm the client, the therapist should inform the client of the potential risks and proceed according to the client’s wishes.
Responding to a Court Order
In scenarios where a court order demands information, the therapist must comply and provide the requested information accordingly.
This outline presents a comprehensive understanding of privilege as it applies to therapeutic settings and legal proceedings, including who holds privilege, exceptions, and processes following subpoenas or court orders.
Certainly! While related, privilege and confidentiality refer to different aspects of protecting client information, especially in therapeutic and legal settings. Think of it this way:
Confidentiality is an ethical duty. It means that a therapist (or other professional) is obligated to keep the information a client shares private. It's a professional standard that prevents the therapist from discussing a client's information with unauthorized third parties.
Scenario for Confidentiality: Sarah tells her therapist about her struggles with anxiety. The therapist is ethically bound not to share this information with Sarah's family, friends, or other professionals without Sarah's explicit consent. If the therapist gossips about Sarah to a friend, they have violated confidentiality.
Privilege, specifically client-therapist privilege, is a legal right that belongs to the client. It allows the client to prevent their therapist from disclosing confidential information in a legal proceeding (like a court case or deposition). It's the client's right to ensure that their confidential conversations are not used against them in court.
Scenario for Privilege: Imagine Sarah's ex-husband's lawyer tries to subpoena her therapist's records for a divorce case to prove she's an unfit parent. Sarah, as the client, holds the privilege. She can legally assert her privilege (or her therapist can assert it on her behalf if she's unreachable) to prevent the therapist from releasing those records, even though they are confidential. The therapist cannot disclose the information without Sarah's waiver or a specific court order overriding the privilege.
The Key Difference:
Confidentiality is about the therapist's ethical obligation to keep information private. Privilege is about the client's legal right to prevent that information from being disclosed in a court of law. Privilege is essentially the legal protection of confidentiality in judicial settings.
When they intersect (Exceptions to Privilege):
As the notes explain, there are specific situations where privilege may not apply, meaning the confidential information might need to be disclosed. For example, if a therapist believes a client poses a serious threat of harm to themselves or others (a "Dangerous Mental Condition" exception), the therapist is permitted to disclose information to prevent harm. In such a case, both confidentiality might be breached (ethically allowed due to danger) and privilege would not apply in any subsequent legal context related to that disclosure.