Privilege

Question 1

What is privilege?

Answer 1

Privilege is the client’s legal right not to have confidential information revealed during a
legal proceeding.

Question 2

Who holds privilege?

Answer 2

The client (regardless of age)
• All members of the treatment unit
• A guardian ad litem or conservator
• If the patient is deceased, the personal representative of the patient

Question 3

What are the 10 Exceptions to Privilege?

Answer 3

1.When the client has introduced his or her emotional condition in a legal proceeding.
2.When the client has treated confidential information as though it were not confidential.
3.When there is a breach of duty: The client sues the therapist for malpractice OR the
therapist sues the client for non-payment (content of therapy remains
confidential)
4.When the therapist has been appointed by the court to examine the client.
5.When the client has sought psychotherapy to commit a crime and/or escape
punishment for a crime.
6. When the client is under 16 years of age and has been the victim of a crime (e.g.
extortion, statutory rape)
7.In a proceeding requested by a defendant to determine sanity.
8. When the psychotherapist has reasonable cause to believe that the patient is in such
mental or emotional condition as to be dangerous to himself or to the person or
property of another and that disclosure of the communication is necessary to
prevent the threatened danger.
9. In a proceeding brought by or on behalf of a client to establish competence.
10.When a coroner requests information in the course of an investigation of deaths
involving public health concerns, abuse, suicides, poisonings, accidents, SIDS,
suspicious deaths, unknown deaths, criminal deaths, or when authorized by the
decedent’s representative.

Question 4

Who issues a subpoena?

Answer 4

Subpoenas can be issued by a lawyer or judge

Question 5

What is the therapist required to do to respond to a subpoena?

Answer 5

1. The therapist should first contact the client.
2. If the client is unreachable, the therapist should initially assert privilege for the client.
3. If the client wants to waive privilege, the therapist should have the client sign a waiver of privilege.
4. If the therapist believes it is an exception to privilege, they should still assert privilege and let the court decide.

Question 6

If a client wants to waive privilege and the therapist believes it would be harmful to the client, the therapist should?

Answer 6

• If a client wants to waive privilege and the therapist believes it would be harmful to the client, the therapist should inform the client and proceed as the client wishes.

Question 7

If a therapist is presented with a court order what must they do?

Answer 7

The therapist must provide the requested information