Three things of interest to my fellow clinicians (two Massachusetts-specific, one USA-specific) and others concerned with the legalities of psychotherapist-patient privilege:
1) The The "Jaffee v. Redmond: The Federal Psychotherapist-Patient Privilege" website
. It is a wonder of organization and informativeness. Brings up issues that, damn, now that you mention it, bear thinking about. (e.g. If a therapist issues a Tarasoff warning, and the patient then commits the crime, can the therapist be subpoenaed to testify for the prosecution? They are, after all, a material witness of advance intent.)
2) In January, the Supreme Judicial Court of Massachusetts ruled that a defendant has a right to demand his accuser's psychologist's records
, in at least some situations, be available to his legal defense.
I thought that, as is so often the case, what makes it into the news is an alarmist over-reaction to what was in actuality thoughtful and considered jurisprudence. But I read the decision and... no, it is absolutely as jaw-droppingly awful as it sounds. According to this decision, if you are the victim of a mugging, and you subsequently seek out a therapist to help you with the trauma sequelae, and the therapist recommends you call the police to report it, and the perpetrator finds out, the perpetrator can subpoena your therapy records on the grounds that -- and I'm not making this up -- since he knows you talked about the trauma to your therapist, it stands to reason you might
have said something exculpating to your therapist and your therapist might
have recorded it in the notes.
It's like they don't even understand what "privilege" is for
. "Oh, your psychotherapy notes are confidential, just so long as there's nothing material in them!"
How could this happen? It was a rape case, of course. Nobody would dream of giving an alleged mugger's defense team access to his victim's mental health records because the victim talked about the crime in therapy. But rape victims, man, where do they get off thinking they have right to things like treatment and confidentiality?
I sincerely hope this is appealed to the US Supreme Court. Or perhaps we need to take this up to the General Court: can we close this loophole legislatively?
3) The law specific to LMHCs and clinician-client privilege in Massachusetts
. The most interesting thing in there is this exception:
in a proceeding [...*] in which the client 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 client and mental health counselor be protected.
Translation: if the client themself introduces the issue of their mental or emotional condition to a court proceeding, the presiding judge can decide to require a therapist to testify or divulge the client's psychotherapy records -- but if the client never brings up their own mental or emotional condition, then the judge cannot.
(The missing clause? Except in child custody matters. There's a different exemption to clinician-client privilege for that. If it's a child custody matter, the judge doesn't need the client introducing their mental or emotional condition to justify demanding the client's therapist's notes on the client.)
This is interesting in light of the above. Can a crime victim impact statement include, "I required years of therapy before I could sleep with the lights off again" without opening the victim's mental health records to the defense team? Is the mere mention
of the fact one has had treatment sufficient to meet the "client introduces his mental or emotional condition as an element of his claim or defense" clause?