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.
Not all jurisdictions, however, acknowledge the psychotherapist-patient privilege in criminal proceedings—take Texas, which strips the privilege from criminal cases unless the treatment in question is voluntary and relates to drug or alcohol abuse. (Tex. R. Evid. 509.) 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 psychotherapist-patient privilege 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. Typical statutes provide that the privilege applies to communications 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 psychotherapist-patient privilege covers statements by patients to their treatment providers during therapy. 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 doesn’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 psychotherapist-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, in some states, a homicide confession during therapy is considered unprivileged.
A patient can vitiate the psychotherapy privilege simply by waiving it. A patient might waive confidentiality, for example, by agreeing to disclosure of her mental health records in a lawsuit for emotional distress.
An exception to the psychotherapist-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 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—only those related to the crime. (Stidham v. Clark, 74 S.W.3d 719 (Ky. 2002).)
Most states have an exception to the psychotherapist-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. In California, for example, therapists must disclose statements when:
The therapist’s required course of action depends 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. However, several courts have held that the duty to warn is distinct from the admissibility of the patient’s statements in court—in other words, a therapist must still warn of a dangerous patient, but may not testify about the statements necessitating 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 folds. The therapist must 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. Only such an attorney can properly advise you as to the applicability of the psychotherapist-patient privilege in your precise situation. Further, you should ask your therapist for an explanation of the confidentiality rules that do—and do not—apply to your treatment relationship.