WINTER 2019: Understanding the Psychotherapist- Patient Privilege

By Meghan C. Thorp, Esq.

Introduction:

As family law practitioners, we encounter issues pertaining to the patient-psychotherapist privilege in a variety of contexts, including with regard to marital therapy, family therapy, and child therapy. This article will address what constitutes privileged information, as well as whether and how the privilege can be waived.

Understanding the difference between confidentiality and privilege:

Confidential information is personal information that is not accessible to the general public, such as medical and therapy records, and cannot be disclosed without the patient’s consent.

Privileged information is confidential information that cannot be introduced into evidence in a court proceeding by testimony or document. The psychotherapist-patient privilege can be waived: (i) by the patient (i.e., via a signed release); (ii) by court order overriding the privilege; and (iii) by a Special Purpose Guardian ad Litem (GAL) waiving the privilege on behalf of a child. Privileged communications include conversations, correspondence, actions and occurrences relating to diagnosis or treatment before, during or after institutionalization, regardless of the patient's awareness of such conversations, correspondence, actions and occurrences, and any records, memoranda or notes related to same.

The psychotherapist-patient privilege applies to psychologists and psychiatrists, including physicians practicing psychiatry, and registered psychiatric nurses. While this article is intended to focus on the psychotherapist privilege, it is important to note that communications with a social worker are also privileged. For more information regarding the social worker privilege, which is similar in many respects to the psychotherapist-patient privilege, see M.G.L. Ch. 112, §135A.

Individual, marital, and family therapy:

The psychotherapist-patient privilege applies not only to individuals participating in one-on-one therapy, but also to groups of individuals participating in marital and family therapy. This means that when there is more than one patient participating in therapy, the privilege applies to all patients involved in the therapy. Absent a court order, only the patient can waive the privilege. A patient has the privilege of refusing to disclose, as well as preventing others participating in the therapy sessions from disclosing, privileged information.

Pursuant to M.G.L. c. 233 §20B, there are six exceptions to the psychotherapist-patient privilege, as follows:

  1. If a psychotherapist, in the course of his diagnosis or treatment of the patient, determines that the patient is in need of treatment in a hospital for mental or emotional illness or that there is a threat of imminently dangerous activity by the patient against himself or another person, and on the basis of such determination discloses such communication either for the purpose of placing or retaining the patient in such hospital, provided however that the provisions of this section shall continue in effect after the patient is in said hospital, or placing the patient under arrest or under the supervision of law enforcement authorities;
  2. If a judge finds that the patient, after having been informed that the communications would not be privileged, has made communications to a psychotherapist in the course of a psychiatric examination ordered by the court, provided that such communications shall be admissible only on issues involving the patient's mental or emotional condition but not as a confession or admission of guilt;
  3. In any proceeding, except one involving child custody, adoption or adoption consent, in which the patient introduces his mental or emotional condition as an element of his claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected;
  4. In any proceeding after the death of a patient in which his mental or emotional condition is introduced by any party claiming or defending through or as a beneficiary of the patient as an element of the claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected;
  5. In any case involving child custody, adoption or the dispensing with the need for consent to adoption in which, upon a hearing in chambers, the judge, in the exercise of his discretion, determines that the psychotherapist has evidence bearing significantly on the patient's ability to provide suitable care or custody, and that it is more important to the welfare of the child that the communication be disclosed than that the relationship between patient and psychotherapist be protected; provided, however, that in such cases of adoption or the dispensing with the need for consent to adoption, a judge shall determine that the patient has been informed that such communication would not be privileged; and
  6. In any proceeding brought by the patient against the psychotherapist, and in any malpractice, criminal or license revocation proceeding, in which disclosure is necessary or relevant to the claim or defense of the psychotherapist.

Practice Tip: If the other party’s medical or therapy records are relevant to your proceeding, you will first want to request the records from that party through a Request for Production of Documents. If the party refuses to produce the records and will not provide the necessary authorization so that you can obtain them, you will need to file a motion with the court requesting the release of such information from the healthcare provider. You will need to establish to the court that the interests of justice and/or the child’s welfare in disclosing the information outweigh the protection of the patient-psychotherapist relationship. Upon a party’s assertion of the psychotherapist-patient privilege, the judge will inspect the psychotherapist’s records in camera to determine whether the records are subject to the privilege.

Child therapy:

Psychotherapists have a heightened responsibility when treating children whose parents are separated or divorced. In The Adoption of Diane, 400 Mass. 196 (1987), the Massachusetts Supreme Judicial Court stated that “[w]here a parent and child may well have conflicting interests, and where the nature of the proceeding itself implies uncertainty concerning the parent’s ability to further the child’s best interests, it would be anomalous to allow the parent to exercise the privilege on the child’s behalf”, This means that a psychotherapist may not disclose to the court or a child’s parents confidential information provided by the child to the therapist absent a waiver.

Child therapists are advised by the Massachusetts Office of Consumer Affairs and Business Regulation (the “OCABR”) to “refrain from initiating therapy with a child without the consent of both parents unless there are legitimate protective issues relating to the child or other mitigating circumstances.” See OCABR’s Practice Advisory for practicing with children and families in Massachusetts where parents may be separated, divorced, or never married for further information regarding guidelines for therapists treating children.

Children have their own confidentiality rights and evidentiary privilege with regard to the therapeutic relationship and a parent cannot waive that privilege on behalf of a child. We often encounter this issue in connection with GAL investigations, where a GAL determines that it would be helpful to his or her investigation to speak with a child’s therapist. In this event, counsel or the GAL can bring a motion before the court requesting the appointment of a Special Purpose GAL to investigate and make recommendations to the court regarding waiver of the child’s privilege. This is necessary even if both parents are willing to sign an authorization permitting the release of the child’s therapy records. A Special Purpose GAL evaluates a number of factors when determining whether it would be appropriate to waive a child’s psychotherapist-patient privilege, including the child’s preferences; the child’s age and maturity; the nature of the child’s communications to the therapist; the potential impact of disclosure on the child and the therapeutic relationship; whether disclosure of the child’s privileged communications would advance or hinder the child’s position in the litigation; whether the privileged information is available from any other non-privileged source; and whether any privileged communications sought to be admitted into evidence are relevant and material to the issues being litigated. A child’s psychotherapist-patient privilege can be waived if the court determines, after consideration of the relevant factors, that it would be in child’s best interest.

Without obtaining a waiver of the psychotherapist-patient privilege, the therapist will be limited to disclosing non-privileged information only, such as the frequency and duration of therapy, and in the case of child therapy, the parents’ contacts and communications with the therapist.

Practice Tip: If you are filing a motion to request the appointment of a Special Purpose GAL to investigate waiver of privilege on behalf of a child, your motion should state with specificity the scope of the information sought and the reason the information is relevant to the GAL’s investigation.


Meghan C. Thorp is a senior associate with Baskin & Associates, LLC. She has been exclusively practicing domestic relations law for over ten years. Ms. Thorp is a certified Guardian ad Litem (GAL) and has been appointed by the Probate and Family Court to serve as GAL and Special Purpose GAL. She is a member of the Massachusetts Family and Probate American Inn of Court, Boston Bar Association, Massachusetts Bar Association, and Women’s Bar Association. Ms. Thorp volunteers for the Attorneys Representing Children (ARC) and Probate and Family Court Lawyer for the Day programs.