Legal Notion of Privileged Communication between Patient-Therapist - Coursework Example

Discuss the legal notion of privileged communication between patient-therapist. What is it designed for? Discuss the legal challenges to this concept, and their implications. Introduction Privileged communication refers to the kind of communication that might transpire between a client and his or her counselling professional such as a psychotherapist, psychologist, psychiatrist, or even social worker. More than that, “Privileged communication is a “legal term dealing with the admission of evidence into courts”” (Knapp & VandeCreek, 1987, p. viii; cited in Watkins 1989 133); lawyers also have the benefit of privileged communication so they are not obliged to disclose information that their client might divulge to outsiders. This may seem like a simple matter of encouraging professionals to exercise discretion and not to share intimate details about their clients with their friends. In reality, it is much more than that because there are times when one entity or another might think that someone who has wronged them and is holding back from telling the truth may actually be divulging the truth to a therapist. This would mean that if access to the records of the therapist can be examined it will save the legal system a great deal of time and serve society’s interest of getting at the truth when it most matters. On the other hand, there are cases where a therapist has learned something from a client that might be of critical importance to another such as a family member or even law enforcement agencies. What is the therapist’s obligation under such circumstances? As this paper shows, therapists have to strike a delicate balance between protection for the privacy and confidentiality for the client and the protection of society. Why the need for privileged communication A United States Supreme Court decision in a case involving privileged communication helped to establish the parameters of this privilege and to crystallize the rights that many professionals have with regard to the confidentiality of the information on their clients. In the landmark case, Jaffee v Richmond, the issue at stake was whether communication that had occurred between a social worker and her client came under the umbrella of this privilege. This was an important case because for some people it broadened the field in terms of the kind of professionals who could cite professional privilege for withholding necessary information. The petitioner in the case, Jaffee believed that a police officer, Mary Redmond had used excessive force in killing Ricky Allen, whose estate had been entrusted to Jaffee. Jaffee and her lawyers believed that if information that Redmond had shared with a licensed clinical social worker could be accessed it would provide the disclosure that would support the contention that excessive force had been applied. Because the Supreme Court had, prior to this time, not dealt with a case of that nature, Jaffee was considered a case of firm impression. The court had to contend with a long-held belief that “the public…has a right to every man’s evidence” (Jaffee v Redmond, p. 1928; cited in Lens 2000 273). If so, then it was a simple matter of getting the clinical social worker in question to lay bare the information so that the evidence becomes available to the court. As Vicki Lens (2000) explains, “The principle and values underlying this rule go to the very heart of our justice system – the search for truth. Simply put, excluding facts can result in erroneous and misguided judgments. It can prevent the truth from coming out or make it difficult to determine what the truth is” (Lens 2000 273). In this particular case there had been conflicting eye-witness reports, with some individuals saying that indeed excessive force had been used while others were not so sure. While the defendant would not say in open court if she had used excessive force she may very well have revealed that information to the psychotherapist. Not to let the court have access to such information would seem like a travesty of justice. Unfortunately, the issue is not as simple as that. In trying to determine how truly important such privileged communication was, the court sought to find out exactly why such a privilege had to exist in the first place. The need for confidentiality, according to the principles of many therapists, went to the very heart of a good therapeutic relationship. This is because, as the court emphasized, ““good” therapy meant “private” therapy” (Lens 2000 274). Without confidentiality it is unlikely that clients would feel comfortable enough disclosing what was bothering them, which was the reason for the therapy in the first place. Being able to share their innermost thoughts was a critical element of the therapeutic relationship. The court also noted, however, the privilege did not serve only private ends. The public and the nation had an interest in the overall wellbeing of the citizenry so if such confidentially worked out to bring about salutary benefits for clients then it was deemed appropriate and good. As the court noted, “the mental health of our citizenry, no less than its physical health, is a public good of transcendent importance” (Jaffee .vs Redmond, p. 1929, 274). It would seem that the notion of privileged communication had a big boost in 1996 as a result of Jaffee v Redmond. It is the court’s recognition of the importance to the public of maintaining the integrity of the therapeutic relationship that raises another issue of great importance. What should a therapist do when a client’s thoughts or lifestyle make it clear that another human being or some entity in society is subject to threat from such an individual? This landmark ruling came in the case of Tarasoff versus the Regents of the University of California. In the Tarasoff case, one Prosenjit Poddar had told his therapist, Dr. Moore, that when Tarasoff, a woman, returned from vacation, he would kill her. Concerned, the doctor contacted the police at the campus where Poddar was a student. He was promptly detained but he explained that he actually did not have any such intention, and assured, the police released him. When Tarasoff returned from vacation, she was killed by Poddar. The family of Tatiana Tarasoff sued the doctor and the Board of Regents of the University of California asserting that they ought to have notified the victim or her family. Though the University argued that it did not have any such obligation towards Tarasoff because she was not the patient in this case, the court ruled that “when a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger" (Tarasoff 1976, p. 34; cited in Kagel & Kopel 1994). The court noted further that such a duty could be properly discharged in a variety of ways, including direct notification of the victim in question, communication with the police, or indeed whatever other steps could be taken to ensure that the potential victim was protected. In the article, “Confidentiality after Tarasoff,” Kagler and Kopel discuss the issue of how the Tarasoff ruling has been interpreted and applied. While social workers, according to Kagler and Kopel, have always sought to protect clients rulings such as Tarasoff have eroded such confidentiality. In fact, in recent years continuing demands for accountability, greater access to information in records, along with mandated calls in the case of child abuse, mean that the potential for breaching client confidentiality has increased considerably. While many mental health practitioners have read Tarasoff v. Board of Regents of the University of California, 1976, as carrying an obligation to breach confidentiality in cases of imminent threat, Kagel and Kopel suggests that the ruling is not as clear-cut as some have come to believe. In fact, “Tarasoff and its progeny require practitioners to use discretion and follow accepted standards of practice: conducting a thorough assessment, documenting their findings; and, if warranted, taking action to protect third parties. Practitioners who properly perform their duties under Tarasoff find that the law converges with their professional ethics. They breach their clients' confidentiality only for compelling reasons” (Kagel and Kopel 1994). A case in Texas gives ample support that therapists do not automatically have to run to the authorities whenever they hear something that they consider potentially dangerous to another. In 1999 it was affirmed in a Texas case, Hapar v. Zezulka, 994 S.W.2d 635 (1999), that as important as Tarasoff is, “Statutes requiring confidentiality of patients' communications with mental health professionals trump any duty a psychiatrist has to warn appropriate third parties when a patient makes specific threats of harm toward a readily identifiable person” ( 2000). In the Tarasoff v Regents of University of California, 551 P.2d 334 (Cal. 1976) case, it was established by the Supreme Court of California that it was a duty of mental health professionals to warn people who were at risk of being harmed by someone in the care of the health professional. In other words, if someone undergoing mental health care makes specific threats against a person that the health professional could identity, such as a spouse, a child, a family friend, a public figure, the therapist was obliged to divulge the information so that the person concerned would get the necessary protection. This was not meant as a suggestion from the California Supreme Court. Failure to do so gave rise to tort liability. In the Texas case, however, the Supreme Court of Texas did not focus on Tarasoff but rather on a 1979 statute that reaffirmed that communications between patients and their mental health care professionals were confidential. The statute specifically prohibits any disclosure to their parties of any such communication unless one of the exceptions to the statute applies. Rather than making the disclosure to the person who is under threat the therapist could notify law enforcement personnel if there was a probability that physical injury to someone was imminent. The language used in the statutory exceptions, howeer, made it clear that it was not mandatory for therapists to make such reports. The confidentiality statute here does not make disclosure of threats mandatory nor does it penalize mental health professionals for not disclosing threats," Justice Enoch wrote for the court. "And, perhaps most significantly, the statute does not shield mental health professionals from civil liability for disclosing threats in good faith. Thus, if a common law duty to warn is imposed, mental health professionals face a Catch-22. They either disclose a confidential communications that later proves to be an idle threat and incur liability to the patient, or they can fail to disclose a confidential communication that later proves to be a truthful threat and incur liability to the victim and the victim's family. (Texas Psychiatrist Dodges Tarasoff Bullet 2006) Some states have tried to find a rational middle-ground by limiting the liability that could potentially be imposed upon therapists for failing to make disclosures that end up making victims of someone. While these statutes provide the customary encouragement reflected in Tarasoff they also provide an escape clause in the event therapists are not able to fully live up to such a duty. In some cases, The actions demanded by some of these statutes require a therapist to breach confidentiality by giving warnings. For example, in Kentucky a duty to warn is discharged if the qualified mental health professional uses reasonable efforts to communicate the threat to the victim and notifies the police (Kentucky Revised Statutes Annotated, 1988; cited in Kagel & Kopel 1994). Legal challenges Confidentiality of sessions is usually valid for those cases where a client and a therapist have one-on-one communication. In those cases where other parties might have been present it could be argued that the privilege may be waived (Watkins 1989 133). It must not be forgotten that the privilege belongs to the client, so the client may waive his or her privilege. In reality, however, “Both the counsellor and the client may claim the privilege when asked to disclose confidential communications, but the client owns the privilege and controls it” (Herlihy & Sheeley 1987 479). The client’s waiver, in some states may be oral Case law that deals with privileged communication includes the so-called third-party rule. “The standard held in most cases is that once the communication has been breached the privileged status of the information is lost. It has been held in some cases that if a third person is present during the disclosure of information then that information is not privileged” (Watkins 1989 135). Even though there are indications that the courts took the issue of privileged communication seriously there have been confusing moments. Judicial discretion has sometimes come into play because privileged communication notwithstanding the courts can decide whether they think that the matter on hand requires that the protection be maintained. It is also important for therapists and those in the counselling and helping professions to realize that the statutes and regulation that govern privileged communications are not uniform. “Client communications with a given group of helping professionals may be privileged in some states but not in others, and existing statutes specify a wide range of exceptions to privilege” (Herlihy & Sheeley 1987 479). A 2005 case helped to catapult the issue of privileged communication to the fore. This involved a Colorado Springs therapist who was ordered arrested for refusing to comply with a military court order for her to release information about her client in a case for which rape had been cited. When Jennifer Bier, the therapist sought help from the courts to quash the military order she was refused. This case is interesting because it seems that the military are able to enter the vaults of confidentiality where under normal circumstances the therapist would be protected under both federal and state rules. As an attorney for Jennifer Biers noted, “The military system is inappropriate sometimes even inept, to deal with civilian due-process issues…Whether the military can do this to Jennifer is a serious, serious issue. The most urgent issue here is her imminent arrest. Her liberty should not be deprived” (Moffeit 2005 A01). This goes to show the therapists cannot simply assume that they are immune from being challenged to breach what they might have come to believe was sacrosanct – their private communication with clients in therapy. Implications Therapists and clinicians have to understand that privileged communication does not mean that no one will ever knock on their door to demand information that they might consider private and non-disclosable. To this end, therapists and professional health counsellors should keep abreast of the code of ethics of their profession and be fully aware of the laws in their state. Such health practitioners would also do well to support lobbying efforts that aim to strengthen privileged communication. It is also important for those in the helping professionals to understand the differences among three key terms, namely, confidentiality, privacy, and privileged communication. “Confidentiality is an ethical standard that protects clients from disclosure of information without their consent, whereas privacy is an evolving legal concept that recognizes individuals’ rights to choose the time, circumstances, and extent to which they wish to share or withhold personal information” (Herlihy and Sheeley 1987 479). Professional codes of ethics, important as they are, do not impose a legal obligation, just a moral one, which is not to say that moral obligations are not important. Therapists must know the difference between a court order and a subpoena. The therapist-client privilege is an important element in the judicial history of the United States but it is not something that anyone should take for granted because it is under continual assault and if therapists are not wary they might find themselves, at best staring into the eyes of a stern judge or at worst looking through the bars of a jail cell. Good therapists would increasingly have to learn to read between the lines and to determine through a balance of professional responsibility, legal mandates, and a duty to protect the innocent in society, just when breaches of confidentiality between therapist and client are necessary. Bibliography Diamond, Bernard L. & Weihofen, Henry. (Oct 1953). Privileged Communication and the Clinical Psychologist. Journal of Clinical Psychology, 9.4, p388-390, Herlihy, Barbara & Sheeley, Vernon Lee. (May 1987). Privileged Communication in Selected Helping Professions: A Comparison Among Statutes. Journal of Counseling and Development, 65, 479. Kagel, Jill Doner & Kopels, Sandra. “Confidentiality after Tarasoff.” Health & Social Work, Vol. 19 Issue 3 (Aug 1994):217. Lens, Vicki. (2000). Protecting the Confidentiality of the Therapeutic Relationship: Jaffee v Redmond. Social Work, 45.3, 274-276. “Military case challenges therapist-client privilege.” Psychotherapy Finances, July 2005. (November 8, 2006). Moffett, Miles. (Jun 17, 2005) Therapist to appeal to Supreme Court, Denver Post, A01. “Texas Psychiatrist Dodges Tarasoff Bullet.” Defense Counsel Journal, Vol. 67 Issue 1 (Jan 2000):128. Watkins, Sallie A. (March 1989). Confidentiality and Privileged Communications: Legal Dilemma for Family Therapists. Social Work, 133-136. Read More