What is a “privilege” and why is it asserted?
In the course of litigating a case in state or federal court, there is often a period during which discovery is conducted. Discovery is a period of time wherein each party can send requests to the other to obtain information, documents, and/or items that are relevant to the specific matter being litigated. The party receiving the requests are then required to produce the responsive information, documents, and/or items, but within certain limitations. One such limitation that may result in a party withholding responsive information, documents, and/or items, is if an applicable privilege exists. A fairly well-known privilege is the attorney-client privilege, which protects communications between a client and his/her attorney when seeking and/or obtaining legal advice. However, another lesser-known privilege is the psychotherapist-patient privilege.
Under Alabama law, “confidential relations and communications between licensed psychologists, licensed psychiatrists, or licensed psychological technicians and their clients are placed upon the same basis as those provided by law between attorney and client, and nothing [in this law] shall be construed to require any such privileged communication to be disclosed.” Furthermore, “confidential relations and communications between licensed professional counselor[s] or certified counselor associate[s] and client[s] are placed upon the same basis as those provided by law between attorney and client and nothing [in this law] shall be construed to require any such privilege to be disclosed.” Thus, similar to the attorney-client privilege, licensed mental health professionals, such as those listed in the above-noted statutes, and clients may decline to produce documents and/or items evidencing their relations as doctor and patient, which specifically includes communications.
However, this does not necessarily mean information regarding a licensed professional, such as the individual’s name, qualifications, specialization, and/or contact information, can be withheld or that all communications and/or relevant items will be privileged. Rather, “[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of the patient’s mental or emotional condition, including alcohol or drug addiction, among the patient, the patient’s psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.” The privilege, much like the attorney-client privilege, is largely intended to protect communications that are made for the purpose of diagnosing or treating the subject individual. Additionally, it is the patient or a representative thereof, which can include the psychotherapist, that must assert the privilege.
Exceptions to the Psychotherapist-Patient Privilege
As is often the case, there are a number of exceptions to the psychotherapist-patient privilege that may render otherwise privileged information discoverable (i.e., unprotected). Under the statute detailing the psychotherapist-patient privilege, there are five (5) expressly articulated exceptions:
(i) proceedings for hospitalization; (ii) examination by order of the court; (iii) accusations in a criminal case; (iv) breach of duty arising out of psychotherapist-patient relationship; and (v) child custody cases.
Under the first exception, in a proceeding to hospitalize a patient for mental illness, where a psychotherapist has made such determination during the course of diagnosis or treatment, the privilege does not apply. The privilege can also be circumvented if the court orders an examination of such communications. Additionally, if a criminal defendant raises an insanity defense or, in a child custody case, the mental state of a party is at issue and there is a question as to the proper resolution of custody, the privilege also does not apply. Finally, if the matter at issue is breach of duty by the psychotherapist in providing services to the patient, or vice versa, the privilege does not apply.
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