§ 40.03 PSYCHOTHERAPIST-PATIENT PRIVILEGE

JurisdictionNorth Carolina

§ 40.03. PSYCHOTHERAPIST-PATIENT PRIVILEGE

All jurisdictions recognize a psychotherapist-patient privilege.28 In Jaffee v. Redmond,29 the therapist was a licensed clinical social worker who had counseled a police officer after she shot and killed a man while on duty. In the lawsuit filed by the victim's family against the officer, the family sought to discover the social worker's notes. The Supreme Court concluded that the communications were protected by the psychotherapist-patient privilege. Explaining the private and public interests served by the privilege, the Court wrote:

Effective psychotherapy. . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment. By protecting confidential communications between a psychotherapist and her patient from involuntary disclosure, the proposed privilege thus serves important private interests.30

The overarching purpose of the privilege is the public interest in facilitating treatment for individuals suffering the effects of a mental or emotional problem.31Justice Scalia found the Court's analysis of the need for the psychotherapist-patient privilege "insufficiently convincing."32 He found the Court's explanation for its decision to extend the privilege to licensed social workers "even less persuasive."33

The Court commented that, since Jaffee was "the first case in which we have recognized a psychotherapist privilege, it is neither necessary nor feasible to delineate its full contours in a way that would 'govern all conceivable future questions in this area.' "34 Consequently, the lower courts have had to address these issues as a matter of federal common law. The state statutes differ among jurisdictions, as well as from the federal case law.35

[A] Holder

The holder of the privilege is the patient, not the therapist.36 Only the patient has the right to invoke and waive the privilege.37

[B] Psychotherapist Defined

Proposed Rule 504 limited the term psychotherapist to physicians and licensed psychologists.38 In Jaffee, however, the Court extended the federal privilege to clinical social workers:

The reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a clinical social worker. Today, social workers provide a significant amount of mental health treatment. Their clients include the poor and those of modest means who could not afford the assistance of a psychiatrist or psychologist, but whose counseling sessions serve the same public goals.39

In addition, the Court noted that most state provisions covered social workers. The Ninth Circuit has extended the privilege to unlicensed counselors40 and another court to a case in which the patient believed the person was a social worker.41

[C] Professional Relationship Requirement

The communication to the therapist must be made while the patient seeks psychological treatment.42 Not every conversation with a therapist is privileged.43 The privilege does not apply where a person is examined for purposes other than treatment. Court-ordered psychological examinations, or those required for worker's compensation, fall into this category.

[D] Communications

The privilege covers communications made to a therapist by a patient and advice given by a therapist to a patient. Matters other than communications and advice do not fall within the privilege, and a treating therapist may be compelled to testify about such other matters. For example, the privilege does not prevent a therapist's testimony regarding the fact of professional consultation by a person on a certain date.44

[E] Confidentiality

The therapist-patient privilege protects only confidential communications.45 Thus, where the information communicated is intended to become public, the privilege is inapplicable.46

[F] Exceptions

The exceptions to the privilege are determined under the law of the jurisdiction in which the issue arises. There is significant variation in the state statutes, and the federal privilege is only beginning to be fleshed out. There are some common exceptions. For example, proposed Rule 504 recognized three: (1) civil commitment proceedings,47 (2) court-ordered examinations,48 and (3) the patient-litigant rule.49 Since Jaffee, a crime-fraud exception has been upheld.50 In addition, some states carve out an exception based on an accused's constitutional right to present a defense51 and cases of suspected child abuse.52

Dangerous-patient exception. A "duty to warn" exception has been engrafted onto the privilege in a number of jurisdictions.53 The leading case is Tarasoff v. Regents of the University ofCalifornia,54 in which the California Supreme Court held that, "once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger."55

In Jaffee, the Supreme Court mentioned this exception in a footnote: "Although it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist."56 Some federal courts recognize such an exception.57 However, other circuits take a different tack — noting that a duty to warn is not the same as permitting court testimony.58

[G] Waiver

Failure to object to the therapist's testimony at trial waives the privilege, as does voluntary disclosure to a third party.59 The privilege may also be waived by the patient testifying about the communication.

[H] Procedural Issues

Like other privileges, "the burden of proof for the psychotherapist/patient privilege is on the party seeking to establish that the privilege applies."60


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Notes:

[28] See Jaffee v. Redmond, 518 U.S. 1, 12-13 (1996) ("[A]ll 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege."). If a jurisdiction also has a physician-patient privilege, then psychiatric treatment would be covered by that privilege when rendered by a...

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