What is Privilege?

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What is Privilege?

Privilege refers to an individual's legal right to prevent or attempt to prevent confidential information from being revealed in a court or other legal proceeding without his/her consent.

Who is the holder of the privilege?

In most situations, the client is the holder of the privilege. This means that the client has the right to decide whether or not confidential information is released in a legal proceeding, and must sign a waiver before you can release the information. Parents of non-emancipated minors have the right to waive privilege on their child's behalf.

This is information you will more than likely see on the exam. Stay tuned on Friday for a question related to privilege. Hint**you may want to compare and contrast privilege with confidentiality...

Privilege does not apply in the following circumstances:

(a) The client authorizes a release of information.

(b) A therapist is legally mandated to breach confidentiality (e.g., to report known or suspected cases of child, elder, or dependent adult abuse).

(d) The situation represents one of the legally defined exceptions to privilege, which include those listed below:

• Patient-Litigant Exception (EC Section 1016): There is no privilege in a legal proceeding in which a patient’s emotional condition has been raised as an issue by the patient or the patient’s representative. Example: An employee is suing her boss for sexual harassment, which she claims caused emotional distress and led to a diagnosis of panic disorder. In this situation, information obtained by the woman’s therapist relevant to her diagnosis is not privileged.

• Court-Appointed Psychotherapist [EC Section 1017(a)]: There is no privilege when a psychotherapist has been appointed by the court to examine a defendant except when the psychotherapist has been appointed at the request of the defendant’s attorney for the purpose of determining the defendant’s plea in a criminal proceeding. Example: A therapist conducts a custody evaluation as an employee of the court. The results of the evaluation are not privileged and will be available to help the court make a decision.

• Breach of Duty Arising Out of Psychotherapist-Patient Relationship (EC Section 1020): There is no privilege when the therapist or patient alleges a breach of duty arising out of the therapeutic relationship. Example: A client sues his therapist for malpractice, and confidential client information is needed to support the therapist’s defense. In this case, the client cannot claim the privilege to prevent this information from being admitted into the legal proceeding.

• Proceeding to Determine the Sanity of Criminal Defendant (EC Section 1023): There is no privilege in a proceeding initiated at the request of a defendant in a criminal action to determine his/her sanity. Example: A woman who has been charged with murder claims that she is “criminally insane” and, therefore, cannot be held responsible for her crime. In this situation, the court may require the therapist who evaluated the woman to provide the court with information that will help it determine whether or not to accept the plea.

• Patient Dangerous to Self, Others, or Property of Others (EC Section 1024): There is an exception to privilege when a therapist has reasonable cause to believe that the patient is in such a mental or emotional condition as to be dangerous to him/herself, to others, or to the property of others and believes that disclosure of the information is necessary to prevent the threatened danger.

• Proceeding to Establish Competence (EC Section 1025): There is no privilege in a proceeding brought by or on behalf of an individual to establish his/her competence. Example: The daughter of a 62-year-old man is concerned that he is no longer able to manage his legal and financial affairs due to cognitive impairment caused by a recent head injury, and she requests that the court declare him incompetent and appoint a guardian. As part of the court proceeding, the therapist who evaluated the man’s cognitive abilities after the injury will be asked to testify about the results of the evaluation, and privilege will be waived by the court.

• Patient Under 16 is a Victim of a Crime (EC Section 1027): There is no privilege when the patient is under the age of 16 and the therapist has reason to believe that the patient has been the victim of a crime and that disclosure of confidential information is in the patient’s best interest.