We all know it’s coming.

That point in the first meeting when a potential client asks, “everything I tell you is confidential, right?” Sometimes they use the term “privileged.”

Technically, they shouldn’t have to ask that question because we would have established the limitations of confidentiality before the meeting. But our interactions with prospective clients are not always so orderly.

We sometimes make ourselves available under less-than-optimal circumstances. Most of us would rather field a frantic phone call than try to undo a poor decision retroactively.

Even in the context of the attorney-client privilege, when and whether we have created an attorney-client relationship is not always clear. That’s a question for another day.

Here we address 11 critical questions to ask when the federal government attempts to gather information or introduce evidence related to a person’s relationship with a mental health provider.

1. Do federal courts recognize an evidentiary privilege for a relationship between a psychotherapist and patient?

  • Yes, assuming the psychotherapist is a licensed psychiatrist, psychologist, or social worker.

The United States Supreme Court in the case of Jaffee v. Redmond, 518 U.S. 1 (1996) recognized the “psychotherapist-patient privilege.” The case involved a police officer who sought treatment for her emotional and mental problems after she shot and killed a man. Id. at 3.

The Court considered “whether statements the officer made to her therapist during the counseling sessions are protected from compelled disclosure in a federal … action….” Id. Or “whether it is appropriate for federal courts to recognize a ‘psychotherapist privilege’ under Rule 501 of the Federal Rules of Evidence.”

The Supreme Court accepted the case after the Seventh Circuit Court of Appeals concluded that a “psychotherapist-patient privilege” applied under the circumstances of the case. Id. at 1. The family of the man the police officer shot brought a federal civil rights action against the officer. During the discovery process, the plaintiff requested notes from the mental health professional’s sessions with the officer. The officer refused to disclose the information, and the trial judge instructed the jury that it could draw a negative inference from her refusal. Id.

The Seventh Circuit reversed the trial court’s refusal to recognize an evidentiary privilege for the officer’s sessions with her mental health professional, but created a balancing test to determine whether the psychotherapist privilege applies. Id. at 9. The Seventh Circuit’s standard would have required a trial court to balance the patient’s privacy interest against the public interest, or evidentiary need, to disclose the confidential communications. Id.

The Supreme Court recognized the psychotherapist-patient privilege. It concluded that the psychotherapist-patient privilege is “rooted in the imperative need for confidence and trust,” just like the spousal and attorney client privileges already established in federal courts. Id. at 10 (quoting Trammel v. United States, 445 U.S. 40, 51 (1980).

Considering the sensitive information disclosed and the importance of confidentiality, the Court rejected the Seventh Circuit’s balancing test out of concern that it would eviscerate the federal privilege. Id. at 18.

At the same time, the Court noted that exceptions to and limitations on the psychotherapist-patient privilege would be considered based on the circumstances of each case. Id.

The Jaffee case established a federal rule of evidence that excludes communications between a patient and licensed psychotherapists in criminal cases and civil cases in federal court.

2. Was the information disclosed during a patient’s relationship with a licensed psychiatrist, psychologist, or social worker?

  • If yes, the privilege may protect the communications.

To decide in Jaffee that a psychotherapist-patient privilege exists, the Court considered the rationale used by most states to justify a privilege for mental health treatment. Id. at 14. The rationale is that society benefits when people suffering from a mental condition or an emotional condition seek treatment from a qualified treatment provider. Id. at 13.

Effective psychotherapy requires patients to trust that sensitive information disclosed during a confidential relationship is protected by a testimonial privilege. Id.

Most states create privileges for mental and emotional health treatment by statutes that establish guidelines and limitations. The Court concluded that a “psychotherapist-patient” privilege outweighed the public interest “of utilizing all rational means for ascertaining truth….” Id. at 15 (quoting Trammel, 445 U.S. at 50).

While the Jaffee court intentionally left most questions about limitations to the federal privilege unanswered, it clarified two issues.

  1. The Court confirmed that the testimonial privilege protected confidential communications between a licensed psychotherapist and a patient made during the course of diagnosis or treatment. Id.
  2. The Supreme Court agreed with the Seventh Circuit that the privilege applies to a therapeutic relationship between a licensed social worker and a patient seeking treatment for mental or emotional problems just as it would for a licensed psychiatrist or psychologist. Id.

3. Are we talking about confidential communications?

  • The privilege protects confidential communications related to diagnosis and treatment.

The Court decided in Jaffee that the privilege protects “confidential communications between a licensed psychotherapist and … patients in the course of diagnosis and treatment….” Id. The Court does not limit the communications to “verbal” communications, but we would be wise to read the language literally.

We should expect information or documents that are not confidential, not between the psychotherapist and patient, and not for the purpose of diagnosis or treatment to fall outside the privilege.

The United States Supreme Court’s analysis of the attorney-client privilege is instructive on this issue.

  • That privilege can apply when a client transfers documents to his attorney “for the purpose of obtaining legal advice,” but only when the client is protected from disclosing the document under the privilege against self-incrimination. Fisher v United States, 425 U.S. 391 (1976).
  • The attorney-client privilege would not apply to information within documents that would not be protected against disclosure if maintained by the client. Id.

A similar analysis would apply to the psychotherapist-patient privilege. Documents that include testimonial information, or communications, that are confidential and created for the purpose of diagnosis or treatment should be protected. A whole range of information could fall outside the privilege, such as interviews with third parties, documents assembled during the relationship, or communications made outside the therapeutic relationship.

4. What if the counselor was not a licensed psychiatrist, psychologist, or social worker?

  • The privilege may not apply.

The testimonial privilege applies to confidential communications for diagnosis or treatment between a patient and licensed psychiatrists, psychologists, and social workers.

  • It is unclear whether the privilege will apply to a therapeutic relationship between a patient and other mental health providers, such as an addiction specialist, family therapists, or licensed counselor.

The Court’s rationale in Jaffee should provide a basis for arguments in these situations. The Court pointed to data that “social workers provide a significant amount of mental health treatment.” They treat a disproportionate number of poor or lower income people but “serve the same public goals.” Id. at 16. The Court noted that most states “extend a testimonial privilege to licensed social workers.”

  • Logically, district and circuit courts should apply the same analysis when considering whether the psychotherapist-patient privilege extends to other licensed therapists.

5. Are substance abuse treatment records treated differently?

  • The short answer is yes (for purposes of disclosure).

The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, Drug Abuse Office and Treatment Act of 1972, and related federal regulations prohibit disclosure of alcohol and drug treatment records unless the patient waives the right of confidentiality or a court orders disclosure of the records. See, 42 U.S.C. §290dd-3 & 42 CFR Part 2.

  • Before issuing an order disclosing the patient’s information, the court must ensure that the patient consented in writing (42 C.F.R. §2.31) or has notice and the opportunity to appear in person to respond to the requested disclosure. (42 C.F.R. §2.64).

To gain access to information related to a patient’s alcohol or drug treatment, the applicant must show good cause, which requires the court to “weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services.” 42 C.F.R. §290dd-2(b)(2)(c). If the court discloses any treatment information, it must “impose appropriate safeguards against unauthorized disclosure.” Id.

  • These statutes and regulations are confidentiality provisions, not testimonial privileges.

Obviously, they work to protect patient information. A testimonial privilege acts as a bar to using the information after it’s disclosed.

The substance abuse regulations offer broader protection from disclosure, including “records of the identity, diagnosis, prognosis, or treatment.” 42 C.F.R. §290dd-2.

  • A patient treated for drug addiction has a right to notice and a hearing before a court can provide the information to the applicant. Id.
  • The protections are not limited to licensed psychologists or social workers, instead they cover “any program or activity relating to substance use disorder education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States….” 42 USCS § 290dd-2.

At the same time, the regulation creates a “good cause” standard that requires the court to weigh the patient’s interest against the need for disclosure. The Jaffee Court expressly rejected such a standard, concluding that it would “eviscerate the effectiveness of the privilege.” Jaffee, 518 U.S. at 17.

  • When substance abuse treatment records are the issue, the inquiry should not end with the statute and regulations.
  • If a court balances the competing interests in favor of disclosure, the psychotherapist-patient privilege could apply.

Nothing about the governing statutes and regulations or the caselaw undermines the testimonial privilege under those circumstances. The analysis would simply move from a statutory and regulatory analysis to the standard established by Jaffee and subsequent caselaw.

6. Who asserts the privilege?

  • The provider may assert the privilege under certain circumstances. The patient can always assert the privilege.

The patient holds the privilege and only the patient can waive the privilege. Jaffee, 518 U.S. at 15 n. 14. In certain instances, the patient may not be aware of an application to disclose information from their treatment history, including applications related to third party litigation or grand jury proceedings.

Given the Jaffee Court’s assurance that only the patient can waive the privilege, a psychotherapist’s inadvertent or intentional disclosure of the patient’s treatment information should not constitute a waiver absent some other exception. Jaffee, 518 U.S. at 15 n. 14.

7. Who bears the burden of establishing that the privilege applies?

  • The person invoking the privilege.

Unlike the presumption of confidentiality created by the statutory and regulatory authority governing substance abuse treatment records, “the person invoking the privilege [must] demonstrate its applicability, including the absence of any waiver of it.” United States v. Bolander, 722 F.3d 199, 222 (2013). Testimonial privileges are strictly construed, and the psychotherapist-patient privilege is no different. Id.

The party asserting the privilege “must set forth facts sufficient to establish all the elements of the claimed privilege.” In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71,73 (1st Cir. 1999). That means the person asserting the privilege must show that they are seeking to protect confidential communications between a patient and psychotherapist during the course of diagnosis or treatment. Id.

The obligation applies to the separate pieces of information. Some information sought by the applicant may fall outside the privilege. Lodging an objection to large swaths of documents will not work. The proponent of the privilege will have to object to specific items and document those objections with a privilege log.

8. Are there exceptions to the psychotherapist-patient privilege?

  • Yes. Courts have recognized a number of exceptions that may apply depending on the circumstances of a case.

Common arguments against the testimonial privilege include waiver and the crime-fraud exception. Keep in mind that the psychotherapist-patient privilege protects against the compelled disclosure of confidential communications between the psychotherapist and patient for the purpose of diagnosis or treatment.

The party asserting the privilege must show that it applies, including that the patient has not waived the privilege. United States v. Bolander, 722 F.3d 199, 222 (4th Cir. 2013) While many of us think of a signed release after express warnings when confronted with the idea of waiving a confidence, the courts interpret the waiver of testimonial privileges more broadly.

In the context of the attorney-client privilege, the Fourth Circuit Court of Appeals has concluded that information communicated to an attorney “with the understanding that the information will be revealed to others…” is not privileged. In re Martin Marietta Corp., 856 F.2d 619, 622 (4th Cir. 1988).

Simply knowing that their communications may be revealed to a third-party undermines the expectation of privacy and waives the privilege in some cases, even if the communications were required by court order. Barrett v. Vojtas, 182 F.R.D. 177, 181 (W.D. Pa 1998).

  • In the context of the psychotherapist-patient privilege, group therapy could be a waiver.

Another common argument against the privilege is that the crime-fraud exception applies to the communications.

  • Communications made to further fraud or other crimes are not protected. Protecting such communications is outweighed by the “predominant principle of utilizing all rational means for ascertaining truth.” Violette, 183 F.3d at 77.

9. Does the privilege apply to a grand jury proceeding?

  • Yes.

Grand juries operate differently than courts. A district court has limited authority over grand jury proceedings. In re Grand Jury Proc., 616 F.3d 1186, 1202 (10th Cir. 2010).

“Although the grand jury normally operates . . . in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length.” United States v. Williams, 504 U.S. 36, 47 (1992). While courts deal with cases and controversies, a grand jury can investigate on mere suspicion of or to rule out violations of the law. United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991).

Despite a court’s limited authority, “the grand jury’s investigatory powers are not unlimited….” In re Grand Jury Subpoena, 646 F.3d 159, 164 (4th Cir. 2011). A court must intervene “when a recognized privilege provides a legitimate ground for refusing to comply with a grand jury subpoena.” In re Grand Jury Proc. #5 Empanelled Jan. 28, 2004, 401 F.3d 247, 250 (4th Cir. 2005).

  • Thus, the psychotherapist-patient privilege applies to grand jury proceedings.

10. Does the patient have a right to notice in a grand jury proceeding?

  • Probably not.

Unlike the provisions that govern the confidentiality of substance abuse treatment records, it is unlikely that patients have a right to notice of a grand jury subpoena delivered to the treatment provider. I will offer the following three reasons for that conclusion:

  1. The psychotherapist-patient privilege is recognized through common law, not statutorily created. I am unaware of any case mandating notice to the patient.
  2. Although the patient holds the privilege, the psychotherapist can assert the privilege on the patient’s behalf, maintaining the patient’s right to protect the confidential communications.
  3. Courts place a high premium on the secrecy of grand jury proceedings. The United States Supreme Court has concluded that “the proper functioning of [the] grand jury system depends upon the secrecy of grand jury proceedings.” Sells Eng’g Inc., 463 U.S. at 424.

11. What happens to the privilege when a psychotherapist reports a patient’s threats?

  • The psychotherapist-patient privilege may act as a bar to additional disclosure and testimony.

As a general rule, the existence of a psychotherapist-patient privilege does not disappear every time a psychiatrist or clinical social worker has to disclose confidential information to protect a third party.

Psychotherapists are obligated to protect the confidences of their patients. This code of confidentiality promotes trust and encourages open dialog. Effective psychotherapy for a person suffering from an emotional problem or mental health crisis requires the psychotherapist to obtain sensitive information from the patient. A patient’s sense that their confidences are insecure will have a chilling effect on their relationship with the psychotherapist.

It is common for state legislatures to create a statutory privilege for these relationships. For example, psychotherapists in North Carolina are not required to disclose any information obtained during the therapeutic relationship unless a judge determines that disclosure is necessary for the proper administration of justice. The statute includes exceptions for reporting suspected child abuse, admitting evidence related to child abuse, and testimony regarding the abuse or exploitation of disabled adults. N.C. Gen. Stat. §8-53.3.

  • In addition, most states impose a duty on the psychotherapist to report a patient’s threats of violence. This obligation is sometimes referred to as the “dangerous patient exception.”

That does not mean that threats of violence are automatically admissible as evidence in federal court. U.S. v Hayes, 227 F.3d 578 (6th Cir. 2000). Remember, allowing a judge to consider whether disclosing the information is necessary for the proper administration of justice is the type of “weighing” analysis that Jaffee expressly prohibits. 518 U.S. at 18.

  • The psychotherapist’s duty to protect a foreseeable victim from danger is different from creating an exception to an evidentiary privilege. Hayes, 227 F.3d at 585.

Courts have not categorically adopted a “dangerous patient” exception to the psychotherapist-patient privilege. Id. A psychotherapist can honor their professional obligations to disclose a serious threat of harm against someone without creating a duty to testify in a criminal or civil proceeding in federal court. Id. at 586.

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