Psychotherapy is, for the most part, confidential. Patients of mental health providers like psychiatrists, psychologists, and social workers reasonably expect that their in-therapy disclosures will remain private. If they didn’t or couldn’t—if they anticipated that their therapists might divulge their innermost secrets—therapy would be wildly ineffective. So say the federal government and states, as they have enacted statutes (or their courts have issued rulings) preventing certain mental health professionals from disclosing information communicated in the course of the treatment relationship.
But some jurisdictions either don't acknowledge or severely limit the psychotherapist-patient privilege (also called the "therapist-patient" privilege in this article) in criminal proceedings. And in many places where the privilege applies to criminal cases, the scope of and exceptions to confidentiality vary. The following is therefore a general discussion of the therapist-patient privilege in criminal cases and some of its features and exceptions, not an exhaustive description of the law throughout the country.
The law of your jurisdiction (either the state or federal government) will define the exact professionals who are bound by the psychotherapist-patient privilege. The privilege often applies to confidential communications in the course of psychotherapy with licensed:
It may also extend to others who provide therapy, such as unlicensed mental health counselors who are supervised by licensed psychologists. (State v. Farthing, 146 Ohio App. 3d 720 (2001).)
The therapist-patient privilege covers statements by patients to their treatment providers during therapy. It generally applies to statements in the context of diagnosis and treatment. It doesn’t apply to conversations outside the therapy context—for example, a discussion between a therapist and patient who are waiting in line at the grocery store. It also probably won't apply if the recipient of the information happens to be a psychotherapist, but doesn’t treat the speaker. As an example, the privilege may not apply to court-ordered mental examinations to determine sanity or competency. (Psychological treatment and testing after litigation has begun are beyond the scope of this article.)
When the therapist-patient privilege does apply, it covers patients’ statements, and often therapists’ diagnoses and notes. It includes recitations of fact, and expressions of emotion and opinion—just about anything the patient says. It can even include admissions of criminal liability: In several jurisdictions, a therapist cannot report someone who confesses to a crime. (United States v. Romo, 413 F.3d 1044 (9th Cir. 2005), United States v. Landor, 699 F. Supp. 2d 913 (E.D. Ky. 2009).)
However, there are scenarios in which mental health professionals either can or must report criminal behavior. And the rules regarding admissions of guilt can vary from one state to another. For example, a homicide confession during therapy might be considered unprivileged.
Almost all legal rules have exceptions—the therapist-patient privilege isn't any different in that regard. Here's an overview of some of its exceptions.
A patient can undo the therapist-patient privilege simply by waiving it. A patient might waive confidentiality, for example, by agreeing to disclosure of mental health records in a lawsuit for emotional distress.
An exception to the therapist-patient relationship in some states involves the patient seeking or obtaining the therapist’s services in order to commit a crime or form of fraud. So, for instance, deceitful statements by a patient to a psychiatrist intended to persuade the latter to prescribe inappropriate controlled substances likely wouldn’t be privileged. That isn’t to say, however, that all statements by that patient over the span of therapy would be admissible in court—probably only those related to the crime. (Stidham v. Clark, 74 S.W.3d 719 (Ky. 2002).)
Most states have an exception to the therapist-patient privilege for dangerous patients, often referred to as the Tarasoff duty. (Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425 (1976).) Depending on the jurisdiction, the exception either allows or requires therapists to report statements by patients that indicate dangerousness. The law might, for instance, say that therapists must disclose statements when the patient presents a risk of serious harm to others and disclosure is necessary to prevent that harm.
The therapist’s required course of action can depend on the circumstances, and can involve notifying the potential victim, the police, or both. (United States v. Chase, 340 F.3d 978 (9th Cir. 2003).) For instance, if a patient tells her psychiatrist that she plans on shooting her ex-boyfriend, the psychiatrist may have to notify the police and warn the former beau. If the patient is sufficiently mentally ill, the therapist may be required to initiate involuntary commitment proceedings.
In some instances, once the duty to warn has arisen and the therapist has divulged the patient’s statements, those statements may be used at trial. State law can, however, allow the therapist to warn but prevent him or her from testifying at any eventual trial. Indeed, several courts have held that the duty to warn is distinct from the admissibility of the patient’s statements in court—that a therapist must still warn of a dangerous patient but may not testify about the statements causing the warning. (United States v. Ghane, 673 F.3d 771, 786 (8th Cir. 2012).)
Many states have statutes requiring healthcare providers, including mental health professionals, to report any suspected abuse of children, elders, and dependent adults. So, in most cases, therapists who hear admissions of such abuse from patients not only can report their patients’ statements—they must.
If, for example, a man confesses to his therapist that he recently beat his stepdaughter, the psychotherapist-patient privilege as to that confession may well fold. The therapist may have to report the admission to the authorities, and the patient’s incriminating statements may be admissible in court. (Hayes v. State, 667 N.E.2d 222 (Ind. Ct. App. 1996).)
This article doesn’t cover all potential exceptions to the psychotherapist-patient privilege, nor the differences regarding the privilege from one jurisdiction to another. If you are concerned about the potential for disclosure of statements you have made or are considering making during therapy, consult an experienced attorney. Also, you can ask your therapist for an explanation of the confidentiality rules that do—and do not—apply to your treatment relationship.