Privilege Flashcards
Privilege vs. confidentiality
Privilege = during legal proceeding Confidentiality = confidentiality is always at play, whether or not there is a legal proceeding
Privilege
Legal term
Client’s right to not have confidential information revealed during a legal proceeding
Who holds privilege?
Initially - always the client! (All members of the unit of treatment)
What if the client is unable to speak for him/herself (child, developmentally disabled or deemed incapable of speaking for self)
If minor child, would be parent or court appointed guardian ad litem
If there is a conservator or guardian ad litem, it usually means the clients has been deemed unable to speak for him/herself.
Ultimately, the client does not lose privilege.
What if the client is deceased?
The court appointed person would have privilege on behalf of the client.
What does guardian ad litem mean?
When a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case. A guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to appoint a guardian ad litem to represent the minor, person lacking legal capacity to make decisions, or person for whom a conservator has been appointed, notwithstanding that the person may have a guardian or conservator of the estate and may have appeared by the guardian or conservator of the estate.
What if client sues therapist?
This is an exception to privilege and a breach of duty.
Records would be asked for and could be shared for malpractice review.
What if a therapist sues client for non-payment?
Exception to privilege and a breach of duty.
Cannot share content of therapy but would share that client was being seen by therapist.
What if client introduced emotional condition into legal proceeding (ex: suing boss for emotional distress)
Exception to privilege.
Because emotional condition is introduced into legal proceeding, therapy records could be introduced.
If client treats own confidential information as thought it’s not confidential
Exception to privilege.
Example given: if famous person was on TV talking about being molested as a child. I would not be able to talk about it but the client still would have forfeited privilege.
Therapist hired by court to see if client is fit for trial
There wouldn’t be privilege and info could be shared.
Client seeks therapy to learn how to commit a crime or to get out of a crime
Exception to privilege if I am called to court to testify.
Client is under 16 and is victim of a crime: extortion or rape/statutory rape (involuntary sex)
Exception to privilege if I am called to court to testify.
Client is danger to self, others, or property
Exception to privilege.
Client must be in a mental or emotional condition (manic and or psychotic are examples)
Misc. Exceptions to privilege
If coroner requests info as part of investigation
If being asked to determine if someone is competent to stand trial (would be completed by MD or psychologist)
