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

• Author: LINDELL L. GUMPER,DOUGLAS H. SPRENKLE
• DOI: http://doi.org/10.1111/j.1545-5300.1981.00011.x
• Published date: 01 March 1981
• Date: 01 March 1981

Fam Proc 20:11-23, 1981

Privileged Communication in Therapy: Special Problems for the Family

and Couples Therapist

LINDELL L. GUMPER, J.D., Ph.D.a

DOUGLAS H. SPRENKLE, Ph.D.b

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

presented.

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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