A Judicial Perspective on Psychotherapist–Client Privilege: Ten Practical Tips for Clinicians

Abstract

Throughout a clinician's therapeutic relationship with a client in the child custody context, the clinician must protect the client's communications which have been given in an expectation of confidence. In the face of multiple competing legal and ethical demands on the clinician, ten practice tips are provided to assist the clinician in carrying out his or her complex obligations.

KEYWORDS:

• privileged communication
• confidentiality
• psychotherapist-client privilege

Notes

The article assumes that the reader has basic knowledge of the law regarding clients’ privacy rights in the therapeutic setting. Except for a brief overview of some of the basic concepts, the article does not address such issues as the duty to warn or protect others from a dangerous client; disclosures a clinician might make as a mandated reporter of danger to a child, an elder, a disabled person, and so forth; client incompetence to assert or waive a privilege; typical exceptions to the privilege; and other issues not directly associated with child custody litigation.

Some of the traps are not specifically limited to confidentiality and privilege. For example, a clinician asked to provide assessment or therapy for a child must ascertain whether the parent seeking treatment for the child has sole legal custody or otherwise has the right unilaterally to authorize assessment or treatment. Conversely, for therapeutic purposes, the child's therapist often seeks the cooperation of the child's other parent even if that parent has no legal power to authorize or oppose treatment. The task of maintaining neutrality between the parents is a challenging one quite apart from the challenges of managing the child client's privacy rights.

See the discussion in the following section regarding the clinician's opportunities to educate clients, lawyers, and the court about competing professional obligations and the legal risks to the clinician.

I am grateful to Hon. Linda S. Fidnick, Matthew Sullivan, Ph.D., and Lyn Greenberg, Ph.D., for discussion of the agreement/court order and for their leadership of the Association of Family and Conciliation Courts (AFCC) Task Force on Court-Involved Therapy, which incorporates a section on clients’ protected communications.

See Dwyer (2012).

Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135 L. Ed.2d 337 (1996).

A dissent by Justice Scalia details numerous arguments in opposition to the majority's position, and Chief Justice Roberts joined the dissent as to one of those arguments.