§ 40.01   Introduction  [583]

 

Although the doctor-patient privilege is the older of the two, the psychotherapist-patient privilege has been more extensively adopted today.

 

§ 40.02   Physician-Patient Privilege  [583-87]

 

Although most states recognize a doctor-patient privilege, the federal courts do not.  The privilege is intended to encourage disclosure by patients in order to aid in the effective treatment of disease and injury without fear that such information will later become public.  The holder of the privilege is the patient, not the physician; only the patient has the right to invoke and waive the privilege.

 

In those jurisdictions that have adopted the privilege, there is tremendous variation in the type of exceptions recognized and the conditions for waiver.  The privilege, for example, may not apply to (1) required reports of gunshot, stab, or other wounds, (2) required reports of suspected child abuse and neglect, (3) required reports of abuse of mentally retarded persons, and (4) test results showing the presence of alcohol or drugs in a criminal suspect’s body.

 

§ 40.05   Psychotherapist-patient Privilege  [587-92]

 

The Supreme Court recognized the psychotherapist-patient privilege in Jaffee v. Redmond, 518 U.S. 1, 10 (1996): "Effective psychotherapy … depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears." The holder of the privilege is the patient, not the therapist; only the patient has the right to invoke and waive the privilege. In Jaffee, the Court extended the federal privilege not only to psychiatrists and psychologists, but also to clinical social workers.

 

The communication to the therapist must be made while seeking psychological treatment. Court-ordered psychological examinations or those required for worker's compensation are not covered. Matters other than communications and advice also do not fall within the privilege.

 

Exceptions to the privilege must be determined under the law of the jurisdiction in which the issue arises. There is significant variation in the state statutes, and the federal privilege is only beginning to be fleshed out. Common exceptions include: (1) civil commitment proceedings, (2) court-ordered examinations, and (3) the patient-litigant rule.