California Western School of Law CWSL Scholarly Commons Faculty Scholarship 1987 Medical and Psychotherapy Privileges and Confidentiality: On Giving With One Hand and Removing With the Other Steven R. Smith California Western School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/fs Part of the Law and Psychology Commons Recommended Citation Smith, Steven R., "Medical and Psychotherapy Privileges and Confidentiality: On Giving With One Hand and Removing With the Other" (1987). Faculty Scholarship. 119. https://scholarlycommons.law.cwsl.edu/fs/119 This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of CWSL Scholarly Commons. For more information, please contact [email protected]. Medical and Psychotherapy Privileges and Confidentiality: On Giving With One Hand and Removing With the Other By STEVEN R. SMITH* Table of Contents INTRODUCTION ................................ 475 I. REASONS FOR PROTECTING CONFIDENTIALITY ...... 476 A. The UtilitarianApproach .................. 477 B. Privacy of Patients ....................... 478 C. ProfessionalHonor ....................... 479 II. ON GIVING: CONF1DENTiAUTY AND PRVILEGES .... 480 A. Ethical Obligations........................ 480 B. Civil Liability ............................ 483 C. Licensing ................................ 484 D. Privileges ................................ 484 E. Physician-PatientPrivilege ................. 485 F. Psychiatrist-PatientPrivilege ............... 485 G. Psychologist-PatientPrivilege .............. 487 H. Social Worker Confidentiality .............. 488 I. Counselors............................... 489 J. Sexual Assault Counselors ................. 489 K. Other Privileges .......................... 490 L. The Common Law ........................ 493 M. ConstitutionalPrivacy and Confidentiality and Privileges ................................ 495 * Professor of Law, University of Louisville School of Law; Associate in Com- munity Health, University of Louisville School of Medicine. B.A., 1968, Buena Vista College; J.D., M.A., 1971, University of Iowa. I appreciate the research assistance of Charla McNally, a third-year student at the University of Louisville School of Law. I also thank my colleagues in the legal, medical, and mental health professions whose suggestions have been invaluable. KENTUCKY LAW JouRNAL [Vol. 75 III. ON TANG AWAY: LIMITATIONS ON PRIVILEGES... 502 A. Self-Destructing Privileges ................. 502 B. Explicit Exceptions ........................ 504 C. Other Common Exceptions ................ 508 1. Child Abuse .......................... 509 2. Adult Abuse .......................... 511 3. Child Custody ........................ 512 4. Dangerous Patients ................... 512 5. Patient Waiver ....................... 513 6. Patient/LitigantException ............. 514 7. CriminalDefense Exception ............ 516 8. Requirements for the Privilege ......... 516 9. Court-OrderedExaminations ........... 517 10. Group Therapy ....................... 518 11. Students and Assistants ................ 520 12. Third-Party Payers .................... 521 13. Privileges After Death ................. 521 D. Federal Cases and State Privileges .......... 522 E. To Whom Does the Privilege Apply? ....... 523 IV. REMOVING EVEN MORE: LIMITS ON CONFIDENTIALTY ................................ 524 A. Privileges ................................ 525 B. Child Abuse ............................. 525 C. Adult Abuse ............................. 530 D. Warnings Regarding Dangerous Patients..... 531 E. Employers (Institutions)and Children ....... 537 F. Third-PartyPayment and Confidentiality.... 541 G. Consent ................................. 542 H. Group Therapy ........................... 542 L Assistants, Teaching, and Research ......... 543 J. When Will ConfidentialityApply? .......... 543 K. Why the Threat Now? .................... 545 V. ARE CONFIDENTIALITY AND PRIVILEGES REALLY NEEDED? . .... 545 A. Reasons for Protecting Confidentiality ...... 546 B. The Importance of Confidentiality and Privileges ................................ 547 1986-871 PRIVILEGES AND CONFIDENTIALITY VI. PROVIDING MEANINGFUL PROTECTION ............ 549 A. Medical Treatment ........................ 550 B. Psychotherapy............................ 550 CONCLUSION .................................. 556 INTRODUCTION After a casual review of most states' statutes, a reader could conclude that strong protection exists for the confidences re- vealed in medical treatment, especially for those revealed in psychotherapy.' Professionals' general duty to maintain the con- fidentiality of their patients and clients often is supplemented with statutory testimonial privileges intended to protect confi- dences from invasion by courts and other governmental bodies. 2 This seems to be the age of psychotherapy and medical privi- leges. A more detailed reading of all the statutes, however, along with related cases, general legal principles, and commentaries could lead a careful reader to a somewhat different conclusion. The protection the law has given with one hand has all too often been taken away with the other. Privileges, and the general obligation of confidentiality, increasingly have been subject to exceptions and limitations, effectively reduced by inconsistent federal and state rules, and threatened by changes in health care "Psychotherapist" has no single meaning. Most commonly it refers to psychi- atrists and psychologists licensed for independent practice. In other cases it refers to any professional who provides counseling or mental health therapy, including social workers, psychiatric nurses, and counselors, as well as psychologists and psychiatrists. 2 S. BRAKEL, J. PARRY & B. WEINER, THE MENTALLY DisABLED AND THE LAW 592-604 (3d ed. 1986) (providing a state by state summary of privilege statutes); J. WIGMORE, WIGMORE ON EVIDENCE §§ 2285-86, 2380-91 (J. McNaughton ed. 1961 & Supp. 1986); Churgin, The Psychotherapist-PatientPrivilege: A Search for Identity, in 2 LAW AND MENTAL HEALTH: INTERNATIONAL PERSPECTIVES 215 (D. Weisstub ed. 1986) (an excellent summary of the law regarding privileges in psychotherapy including a state by state summary of privilege statutes); Note, Developments in the Law-Privileged Communications, 98 HARv. L. REv. 1450 (1985) [hereinafter Developments]; Comment, Psychotherapist-PatientPrivilege Under FederalRule 501, 75 J. CRiM. L. & CRMINOLOGY 388, 396 (1984) (listing forty-one states which statutorily provide the psychotherapist- patient privilege). KENTUCKY LAW JOURNAL [Vol. 75 financing. Hospitals, other health care facilities, and practition- ers are in the middle of this apparent paradox. This Article reviews both the giving and the taking away: the protections afforded to confidentiality by privileges and legal duties, and the way those protections are eroded. The duties of professionals and others to maintain confidences are noted, but testimonial privileges are emphasized. This Article proposes re- forms in the way we try to protect confidentiality and suggests that the protection of therapy confidences be dealt with as a coherent whole (privileges and obligations of confidentiality should be dealt with together). Exceptions to privileges should be reduced and narrowed, and federal law should recognize the desirability of a consistent approach to confidentiality. Perhaps most importantly, the transmission of some confidential infor- mation to third parties should carry with it a duty which would require the recipient to maintain confidentiality ("extended con- fidentiality"). Kentucky law serves as the basis for this review of psychoth- erapy and medical privileges. Although each state has unique issues and approaches to confidentiality, the problems seen in Kentucky are typical of those present elsewhere. Kentucky has been a leader in adopting a variety of medical, psychotherapy, and counseling privileges, but similar privileges have been adopted in many other states.3 I. REASONS FOR PROTECTING CONFIDENTIALITY There are three major reasons for protecting the confidences of medical treatment and psychotherapy. These can be broadly labelled (1) "utilitarian," (2) "patient privacy," and (3) "profes- sional honor" reasons. Because of the social costs in protecting confidentiality, those promoting its protection bear some burden of demonstrating the benefits. Making information unavailable increases the risk of incorrect or bad decisions, tends to reduce the efficiency of organizations and society generally, and con- 3 Like many other states, the answers to many specific questions about the interpretation of privilege statutes and duties of confidentiality in Kentucky remain uncertain. One is, therefore, left to the interpretations of other states in trying to determine what Kentucky would do with a specific question. 1986-87] PRIVILEGES AND CONFIDENTIALITY ceals information of significant public interest. The costs of confidentiality also extend to many other areas, such as employ- ment decisions (e.g. medical data about an employee may not be available to a potential employer), marital decisions (medical information about one partner may not be available to the other), and political decisions (a candidate's psychiatric history may not be available to the public). These costs of confidential- ity, however, most commonly arise with issues of testimonial privileges where these costs