Privileged Communication in Therapy: Special Problems for the Family and Couples Therapist

Published date01 March 1981
Date01 March 1981
Fam Proc 20:11-23, 1981
Privileged Communication in Therapy: Special Problems for the Family
and Couples Therapist
aPsychological Institutes of Michigan, P. C., 6785 Telegraph Road, Birmingham, Michigan 48010. Research for the paper was
conducted in partial fulfillment of the requirements for the first author's doctorate in clinical psychology at Purdue University. The
stimulus and support of James D. Linden, Ph.D., and Donald R. Ottinger, Ph.D., Department of Psychological Sciences, Purdue
University, are gratefully acknowledged.
bDepartment of Child Development and Family Studies, Purdue University.
Misconceptions concerning the existence and scope of the legal privilege for communications in therapy are
considered. Basic limitations on the protection afforded by the privilege are treated, as are some major specific
exceptions and waivers, particularly as they raise special difficulties for the therapist who works with groups, couples,
and families. Practical suggestions for the therapist and directions for policymaking by the helping professions are
Mental Health professionals frequently hold some potentially damaging misconceptions about the extent to which
communications in counseling and psychotherapy are protected from disclosure in legal proceedings. Marriage and family
therapists, in particular, may have a special need for information about this issue because of the unique nature of their
professional identity and activity. This article will spell out major limitations on priviledged communication in
psychotherapy, with specific emphasis on couples and family therapy, and will suggest guidelines for the legal and ethical
resolution of related problems of therapeutic confidentiality.
Roots of Misunderstanding
It is not surprising that many therapists believe they have greater protection from disclosure in judicial proceedings than
they in fact have. Most therapists (and their clients) consider confidentiality in therapy to be a basic prerequisite for a
satisfactory therapist-client relationship (e.g., 17). Many therapists' training in this matter was limited to stern but simplistic
admonitions on the sanctity of psychotherapeutic confidentiality with references to chapter and verse of professional codes
of ethics. Thus, from their perspective, confidentiality is a paramount concern. From the perspective of the legal system,
however, the privilege for certain professional communications is generally viewed as a narrowly drawn exception to the
more fundamental principle that all relevant information should be available to judicial decision makers (20). Hence the
legal system views the issue through a different set of lenses. The legal primacy historically given the principle of
evidentiary access over concerns for professional confidentiality finds expression in the numerous limitations on the
privilege considered in this paper.
Definition and Ownership of the Privilege
The "privilege" for therapy communications is a limited, legal right, usually vested in the client rather than the
professional, to refuse or prevent disclosure of therapy communications in legal proceedings.1 At early common law, only
attorney-client and husband-wife communications were privileged (3), and today, with extremely rare exception, the
privilege for therapy communications exists only through specific statutory provision.
Perhaps the most common misconception is that the privilege inheres in one's professional status and belongs to the
professional.2 As with the attorney-client privilege, after which many therapist privileges are modeled, privileges covering
client relationships of mental health professionals belong to the client. It follows that the therapy client may waive or give
up the privilege without consultation with the therapist.3 When this occurs, the therapist has no independent privilege to
refuse to testify.4 Although the therapist generally has no right independent of his client to assert the privilege, he generally
has a duty to assert the privilege on behalf of the client when therapy communications are sought to be disclosed (see e.g.,
Cal. Evid. Code, sec. 1015, 1966).
Limitations on the Privilege
In the following discussion of limitations on the privilege, the reader should remember that there are a confusing variety
of statutory protections in different jurisdictions. Even in many cases arising in federal courts, the widely varying provisions
of state law, rather than a uniform federal rule, will determine whether therapy communications are privileged (Rule 501,

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