Perspectives - Vol. 4, No. 4 - Therapist- Client PrivilegeJames J. Maguire, Jr., JD, MA, NCC Updated: Nov 1st 1999 Therapist-Client Privilege You are a caring, competent, compassionate counselor, who is certain that it is in the best interests of children to disclose to a Court information about the mother of the children. This Court says thank you, but another Court rules that you may be liable for wrongful disclosure of confidential information. When is disclosure of information obtained by a psychologist, psychologist and or counselor in the course of treatment appropriate? When is disclosure required? When is the disclosing professional insulated from liability? These and other issues concerning the therapist-client privilege will be discussed in this article. The issue of privilege and disclosure of information disclosed in a therapeutic setting has received quite of bit of legal attention in the recent past. This article will attempt to set forth the present status of the scope and the limitations of the psychologist patient privilege. There will be a brief discussion of the history of the privilege and the relationship between various conflicting statutes regarding disclosure of confidential information. In New Jersey the Psychotherapist-patient privilege has been recognized and enacted into law. It was created in 1966. N. J. S. A. 45:14 B-28. The law provides: The confidential relations and communications between and among a licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between Attorney and client and nothing in this act shall be construed to require any such privileged communication to be disclosed by any such person. There is no privilege under this section for any communication: (a)Upon an issue of the clients condition in an action to commit the Client or otherwise place the client under the control of another or others because of alleged mental incompetence, or in an action in which the client seeks to establish his competence or in an action to recover damages on account of conduct of the client which constitutes a crime; or (b) upon an issue as to the validity of a document as a will of the client; or (c) upon an issue between parties claiming by testate or intestate succession from a deceased client. After the enactment the law remained as written until the first amendment thereto in 1981. The 1981 amendment extended the privilege to cover communications between and among as opposed to between, psychologists and individuals, couples families or groups. It was again amended in 1994. This amendment added the second paragraph above. It was thus an attempt to set forth exceptions to the applicability of the privilege. The above statue was made a part of the New Jersey Rule of Evidence. N. J. R. E. 505 provides: The confidential relations and communications between and among a licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed by any such person. The language of the law and the rule of evidence seem clear enough upon reading. However, the privilege afforded by the language of the law does not stand in a vacuum. There are other laws and other considerations that must be factored into every decision concerning the disclosure or non-disclosure of confidential communications. The decision to allow the disclosure, prohibit the disclosure or punish for the wrongful disclosure seem to depend in part upon the underlying facts of the individual case before the court. For example, it is a crime to fail to disclose child abuse. ( N. J. S. A. 9:6-8.10. The courts of the State of New Jersey have decided the question of which law to apply when there is a conflict of laws when the underlying facts deal with the child abuse. In those cases the privilege against disclosure of confidential communications pursuant to New Jersey Rules of Evidence 506 and N. J. S. A. 45:14B-28 must give way in favor of the obligation of reporting pursuant to N. J. S.A. 9:6-8.10. State of New Jersey v. John R. Snell, A- 5720-96 (1998) In the Snell case the defendant sought counseling after his lover discovered that he was sexually abusing her granddaughters. Mr. Snell consulted with a psychiatrist and during the counseling session related to his doctor that he had performed an act of oral sex upon each of the two minor children. Immediately after the session, the doctor believed himself to be legally bound by N. J. S. A. 9: 6-8.10 to report the information disclosed in the counseling to the Division of Youth and Family Services (DYFS). Due to the continued proximity of Mr. Snell and the children, the psychiatrist held the belief that the abuse would likely occur again. It may be useful to review the language of the statute that the psychiatrist thought obligated him to report the prior activity of Mr. Snell. N. J. S. A. 9:6-8.10 provides in part, that: Any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same immediately To the Division of Youth and Family Services by telephone or otherwise. In order to insure compliance with the foregoing mandate of reporting, the statute imposes a criminal penalty for the failure to report. As an additional incentive to reporting the law provides that anyone making such a report shall have immunity from any civil or criminal liability. N.J.S.A. 9:6-8.13. Faced with the language of the N. J. S. A. 9:6-8.10 and the aforementioned language of the Psychologist-patient privilege statute the Appellate Court in the Snell case reached for an interpretation that allowed the conviction of Mr. Snell to stand. That is to say, the Court allowed the evidence of what Mr. Snell admitted to the psychiatrist into evidence. Mr. Snell sought to exclude his communication to his treating psychiatrist. He did not rely upon the physician patient privilege to support his claim that the communication between he and his treating doctor was privileged. That privilege contained in N. J. S. A. 2A84A-22.1 et seq. prohibits the disclosure of confidential communications between a physician and patient. However, The reason for that Mr. Snell did not rely upon the physician patient privilege was that it contains an exception for those instances when the physician is required to report to a public official. N. J. S. A. 2A:84A-22.5 and N. J. R. E. 506 (e). Therefore, the requirement of the reporting statute would be considered an exception to the physician patient privilege and the confidential communication with his psychiatrist would be admissible into evidence. Therefore, Mr. Snell relied upon the psychologist privilege contained in N. J. S. A. 45:14B-28 and N. J. R. E. 505 which do contain an exception where reporting to a public official is required. The argument relied upon by the State was that since the psychologist patient privilege is akin to the attorney client privilege the communication by Mr. Snell if made to an attorney would not be privileged. It would fall into an exception to the lawyer client privilege. Namely, a communication made in the course of seeking legal counsel to aid in the commission of a crime or fraud. While rejecting the argument of Mr. Snell the Appellate Court did not agree entirely with the argument proffered by the State. Court did agree that the doctor had a duty to report, however, it did not agree that the duty to report was based upon the commission of a fraud or crime exception to the attorney client privilege. Mr. Snell did not consult a psychiatrist to commit another crime. In fact, he consulted a doctor to aid him in his efforts to refrain from committing further criminal acts of child abuse. The Court took note that the psychologist patient privilege has a greater scope and protection than the physician-patient privilege. The Court further noted while quoting another case that The psychologist- patient privilege was created by the New Jersey legislature as a part of a comprehensive statutory scheme designed to license and regulate practicing psychologists. The nature of the psychotherapeutic process is such that full disclosure to the therapist of the patients most intimate emotions, fears, and fantasies is required. State of N. J. v. Snell, supra. Having said all that, one would think that the court was going to hold that the communication between Mr. Snell and his treating psychiatrist would be subject to privilege. However, the psychologist-patient privilege, like the attorney client privilege, has limitations. The Court stated that the privilege could be defeated where common sense and fairness compel disclosure of confidential communications. Thus, the Court decided that in this case common sense and fairness required that Mr. Snells communication made to a treating psychiatrist be not kept confidential. One wonders what the decision would had been had not the underlying communication disclosed such a universally deplorable act. The Court stated that there must be a balance between the language of the reporting statute and the language of the statue creating the privilege. In order to strike this balance the Court stated that all privileges must be strictly construed. In statutory construction the Court pointed out, that it is well established, that where there is a conflict, the more specific statue must stand over the more general. The Court went on to determine that the language of the reporting statute was more particularized and specific than the statute and evidence rule relating to privilege. The Court further decided that the public policy behind the reporting statute must stand above the public policy supporting the psychologist patient privilege. The protection of children from injury, harm, or abuse by means of the statutory reporting requirement may not be blocked or hindered by the assertion of a blanket testimonial privilege. State of N. J. v. Snell, supra. The bottom line of this case is that the law in New Jersey is now settled. Any person must report child abuse under penalty of criminal prosecution. The counseling profession has incorporated this fact of life into the practice of therapy. Given the weight the Court placed on the public policy of protecting children, the result in the next case to be looked at is surprising. In a matter decided by the Superior Court of New Jersey, Appellate Division on June 15, 1999, the Court allowed an action against a psychologist for wrongful disclosure of confidential communications. Runyon v. Maureen B. Smith, Ph.D., and Psychological Associates, A-1533-97 The facts of the Runyon are clear and undisputed. For that reason, the case makes a good vehicle in which to examine the scope of the psychologist patient privilege. Mrs. Runyon, the plaintiff herein, sought and obtained a temporary restraining order against her husband. The next day Mr. Runyon sought to set aside the temporary restraining order because he alleged that Mrs. Runyon was a danger to their children. The hearing on the issue of dissolving the restraining order and temporary custody took place without the benefit of the presence of Mrs. Runyon. One suspects that the Judge proceeded without Mrs. Runyon due to the allegations that the children were alleged to be at risk. In the name of protecting the children from harm, Mrs. Runyon was not afforded an opportunity to be heard. In any event, there was testimony by the defendant herein, Maureen B. Smith a licensed clinical psychologist. Her testimony was that she had treated Mrs. Runyon approximately five years ago and counseled both Mr. and Mrs. Runyon about six months prior to the hearing. Dr. Smith, when asked to express her concern for the children replied that she was concerned for their safety and welfare. Dr. Smith went on to testify that Mrs. Runyon had a physically and verbally abusive relationship with her oldest son and that she (Dr. Smith) has lost contact with Mrs. Runyon. However, Dr. Smith did state that Mrs. Runyon was involved in some group that could be cult like. She stated that she was concerned about their welfare and safety. The Court found the testimony of Dr. Smith to be very persuasive and awarded temporary custody of the children to Mr. Runyon. Dr. Smith also submitted a written report wherein she was highly critical of Mrs. Runyon. In fact, Dr. Smith stated that it would be a huge error to expose the children to the ideology of a person with thought disorders. Mr. Runyon was awarded custody. Thereafter Mrs. Runyon filed a complaint against Dr. Smith seeking money damages for violating the psychologist-patient privilege under N. J. S. A. 45:14B-28 as well as the ethical rules governing psychologists by providing fact and opinion testimony at the hearing. Dr. Smith moved for summary judgment. She acknowledged that she provided the testimony and report but claimed that her testimony was required in the best interest of the children. There were others issues not relevant to this document that were involved in the case. The motion judge agreed with Dr. Smith and granted summary judgment in favor of Dr. Smith. On appeal, Mrs. Runyon argues that Dr. Smith was not entitled to breach the psychologist patient privilege. Dr. Smith acknowledges that she did indeed breach the privilege but that she was entitled to do so to promote the best interests of the children. At this point it may be beneficial to briefly summarize both cases under consideration. In the Snell case, the Court allowed into evidence confidential communications obtained in the course of treatment. It was determined that the reporting of the confidential communication was mandated by the reporting act and not protected by the psychologist patient privilege statute. Public policy in protecting children from harm overrode the public policy of the psychologist-patient privilege. In the Runyon v. Smith case the trial judge granted Dr. Smiths motion for summary judgment and found that she was not liable for the testimonial breach of the privilege. That decision had the effect of ruling that the breach was required due to the best interest of the children. That brings us to the decision of the Appellate Court in the Runyon matter. The Court went through the history and importance of the law of privilege and stated that the psychologist patient privilege should be given the same treatment as the lawyer client privilege. To pierce the latter privilege the party seeking to do so, must meet a three-prong test. In re Kozlov, 79 N. J. 232, (1979). First, there must be a legitimate need for the evidence. Second, the evidence must be relevant and material to the issue being decided. Third, the information sought cannot be secured from any less intrusive source. The Court found that the trial judge at a minimum should have heard the proffered testimony in camera before allowing the testimony. Unfortunately, neither the judge nor Dr. Smith discussed the issue of piercing the privilege. In discussing this issue the Court stated Surely Dr. Smith should have recognized that she was testifying to information she received in confidence, a clear violation of the psychologist-patient privilege. The patient holds the privilege and the psychologist may not waive it in the absence of approval by the patient or at the direction of the court.Runyon v. Smith, supra. In this case the trial judge made no attempt to satisfy the above-mentioned three-prong test in order to make the threshold determination of whether the testimony of Dr. Smith would be necessary. Therefore, the appellate court went through the evidence and submitted it to the three-prong test. It concluded that the three-prong test was not met and that the testimony of Dr. Smith was indeed a breach of the psychologist-patient privilege. The Court thus held that Dr. Smith breached the privilege. The defense raised by Dr. Smith that the breach was required for the best interest of the children was not sufficient to immunize her from liability. While the treating psychiatrist in the Snell case was determined to be within the law in reporting the child abuse, based in large part on the public policy of protecting children from harm, Dr. Smith in this case was not likewise immune. What separates the two? Was it that one was a criminal act involving children and the other a run of the mill, garden variety divorce action? Of course, legal writers will distinguish the two cases on their facts. But the fallout is that the psychologist patient privilege is left less settled than before these two decisions. The question that comes to mind is what does the counselor do in a situation like the one facing Dr. Smith? Her entire professional being felt that the children were at risk. It can be argued that the same public policy to protect the children that is the keystone of the Snell decision was the motivating force in Dr. Smiths voluntary testimony. I wonder what would have happened if Dr. Smith sent in a report to DYFS, via telephone and in writing and Mr. Runyon utilized subpoena power to require the production of the report. Would the business record exception override the psychologist patient privilege? Could Dr. Smith have escaped exposure to suit by giving the same facts in a different forum? Is the safe route to take in like situations to report child abuse to DYFS and let the interested parties get the otherwise privileged information from DYFS? If the protection of children from harm is the policy, should it even matter in what forum the testimony is received? It seems that the search for a safe harbor in these litigious times may be best addressed though professional organizations seeking legislative action. In conclusion I would ask you to consider what you would done if you believed as Dr. Smith did that those children were in harms way? One final point that may be of interest to those in the counseling profession is that the appellate court, in the Runyon case, decided whether a psychologist can be liable in damages for the unauthorized divulgence of confidences. The decision reached was that a patient has a cause of action against a psychologist for the unauthorized revelation of confidential information received in the course of treatment. Reference:
Maguire, Jr., James J. (1999). Therapist- Client Privilege. [Online]. Perspectives. [1999, November 1]. | 
