The psychotherapist-patient privilege plays an important role in federal and state rules of evidence, especially in disputes raised between the patients and their mental health practitioners. In Jaffee v. Redmond, the Supreme Court established that the protection of confidential communications between the licensed mental health practitioners and the patients can be stronger and resist compelled disclosure even if there was a criminal case that involves serious issues in key evidence. The Court strengthened the privilege on the basis that if the psychotherapy applied by the practitioner relied on “confidence and trust,” then the patients are privileged to withhold critical information needed for the treatment.
Jaffee is certainly a landmark for cases related to health professionals’ privilege, however, this structure has raised another concern when it is compared to attorney-client privilege. For lawyers, if their clients sue them for malpractice, lawyers are allowed to disclose the privileged information for the purpose of their own defense. Mental health professionals face greater constraints when they need to defend themselves against patient complaints either, in front of regulatory boards or in the court. This has created an over-powerful status of rights to the patient while planting seeds of a potential structural imbalance for psychotherapists that may be ethically problematic and practically harmful.
Compared with attorney-client privilege, psychotherapist-patient privilege does not offer the health professionals to equally defend themselves in most litigation and board administrative hearing processes. Although there are traditional exceptions that require the psychotherapists to report the privileged information to the related authorities, such as “being ordered by court” or “possible self-harm or dangerousness”, these scenarios are narrowly construed and are often relied on or subject to judicial supervision.
As a public policy matter, it might be necessary to re-discuss the privileged communications among psychotherapists and their clients. In Tarasoff v. Regents of the University of California, the Court affirmed that the confidentiality is not absolute, and it can be bypassed when there is a necessity to prevent serious harm. However, various rules of law still limit the exceptions that can fairly protect the psychotherapists right as a health professional when there are disputes raised towards their malpractice or ethical issues. For cases where the psychotherapists are accused, the professional responsibility requirement does not only serve to be a shield for patients as the requirements are expected to be, but rather a barrier for finding the facts and upholding professional accountability.
There should be a balanced reform of psychotherapist-patient privilege to equally protect the patient and the provider. Legislators and courts should be favorable to embrace the limited self-defense exception in the fields of psychological practices, similar to that of the attorney-client privilege. Some suggest that the privilege shall be waived for psychotherapists when their patients make allegations and legal claims against them for malpractice or civil liability. It could be added that the disclosure shall be restricted to communications that are directly related to the allegations raised by their clients. Courts could be assigned with authority to regulate the disclosure and limit unnecessary exposure of the privileged information.
A new set of regulatory rules should be considered so that the legal system can be fairer in balancing the psychotherapists’ ethical concern with procedural justice due process and so that both patients and health professionals, especially psychotherapists, are treated equally under the law.