Mental Health Providers and Privilege: What you need to know.

This is the second post in our series of three posts discussing mental health evaluations, privilege, and juvenile clients. Thank you to our summer legal intern, Evan Lee for all his great work on this topic!

Like the attorney client privilege or priest-penitent privilege, a privilege exists for communication between patients and mental health professionals. In fact, all jurisdictions within the Fourth Circuit, including North Carolina, contain some statutory form of this privilege. However, the law governing privileged information between patients and a counselor or psychologist is multilayered. It is governed by the Federal Rules of Evidence, the North Carolina Rules of Evidence, state statutory law, state administrative law, and to a certain extent, professional codes of ethics.

The United States Supreme Court determined that the Federal Rules of Evidence could not compel disclosure of confidential communications between a psychotherapist and her client during the course of diagnosis. Jaffee v. Redmond, 518 U.S. 1, 15 (1996). Protecting such communications is rooted “in a public good which overrides the quest for relevant evidence.” Kinder v. White, 609 Fed. Appx. 126, 131 (4th Cir. 2015) (quoting United States v. Glass, 133 F.3d 1356, 1358 (10th Cir. 1998)). In Jaffee, the Supreme Court determined this privilege existed as a general privilege in Rule 501. The North Carolina Rules of Evidence provide that privileges are determined in accordance with the laws of this state. This includes specific privileges between patients and mental health professionals.

North Carolina grants all patients treated by mental health professionals a right to confidentiality. N.C.G.S. § 122C-52. This right prevents the disclosure of information acquired in attending or treating a patient.  Exceptions exist for patient consent, information regarding involuntary commitment proceedings, competency evaluations, information regarding the abuse and neglect of a child or adult, information relevant to coordinating treatment, and other court compelled disclosures. N.C.G.S. §§ 122C-53-55. Mental health professionals also have a duty to report child abuse, neglect, dependency or death. N.C.G.S. § 7B-301. Discretionary disclosure exists when the professional believes there is imminent danger to the client or another individual or there is a likelihood of the commission of a felony or violent misdemeanor. N.C.G.S. § 122C-55(d). However, “North Carolina does not recognize a psychiatrist’s duty to warn third persons.” Gregory v. Kilbride, 150 N.C. App. 601 (2002).

Ethically, psychologists and counselors must protect confidential information and therapists must explain confidentiality and its limitations to all patients. Specific guidelines also exist for forensic practitioners who present psycholegal issues to a judge or jury. Therefore, both the juvenile and the parent need informed consent and an understanding of confidentiality before any evaluation or treatment prior to adjudication.

North Carolina also provides a statutory privilege for communication made between a psychologist and a patient. N.C.G.S. § 8-53.3[1]. This privilege covers information acquired in the practice of psychology and includes that information necessary to enable the psychologist to practice psychology. State v. East, 345 N.C. 535, 544 (1997).

However, this privilege is not absolute. Capps v. Lynch, 253 N.C. 18, 22 (1960). The patient may expressly or impliedly waive his physician-patient privilege. Cates v. Wilson, 321 N.C. 1, 14 (1987). A district or superior court judge may also compel disclosure when necessary for a proper administration of justice. Thus, trial court judges have wide discretion in determining when information is not privileged and when disclosure must be compelled. State v. Efird, 309 N.C. 802 (1983). Further, the privilege does not apply to information regarding the abuse or neglect of a child. The next post will examine what types of conduct must be reported under N.C.G.S. § 7B-301, as well as arguments and strategies for excluding information shared between a juvenile and a mental health.

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[1] North Carolina also has privileges for school counselors, N.C. Gen. Stat. § 8-53.4, licensed social workers, N.C. Gen. Stat. § 8-53.7, and licensed counselors, N.C. Gen. Stat. § 8-53.8.

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