CLIENT ALERT, July 2009
For many years, state and federal statutes have restricted the disclosure of patient health care information by mental health practitionersi. A recent amendment to RCW 5.60.060, effective July 26, 2009, has extended the protection afforded to mental health information by specifying that such information is privileged.
RCW 5.60.060 now provides that mental health counselors, independent clinical social workers, and marriage and family therapists may not disclose or be compelled to testify regarding any information acquired from patients when the information was necessary to enable the practitioner to render professional services to the patient unless: (1) the patient provides written authorization for the disclosure; (2) the patient waives the privilege; (3) a statutory exception applies; or (4) the practitioner believes the disclosure will avoid or minimize imminent danger to an individual. The intent of this statute is to ensure practitioners may not be asked about the content of client communications when they are called to testify at a deposition, hearing or trial. It enhances the confidentiality of treatment information, which was previously protected by statutes and regulations restricting the disclosure of written and electronic records.
Mental health practitioners who are called to testify or produce records may now object to a subpoena on the grounds that their communications are privileged, in addition to putting forward any other appropriate objection under state or federal law. We anticipate that courts will use much the same analysis to address such objections that they use in dealing with the physician-patient privilege, and the psychologist-patient privilege. We also anticipate that the mental health practitioner privilege is likely to be subject to the same strict construction and conditions as these privileges. As such, the privilege will likely not apply in instances where the patient sought advice in furtherance of a crime or fraud; in cases of child abuse; or information is communicated to a practitioner in an effort to unlawfully procure a controlled substance.
Like similar privileges recognized in other realms, the mental health privilege attaches only to confidential communications made within a protected relationship. The communication is not privileged when made in the presence of a third person who is not essential to the confidential relationship, even if the third person is a spouse or family member. Communications to persons who are essential to the confidential relationship, however, are privileged. For example, communications to a family member are privileged if the communications are necessary to further communication between the privilege holder (the patient) and the mental health practitioner, e.g. if the family member is an interpreter. Also, the fact that a mental health practitioner has previously provided mental health care to a patient does not automatically establish that subsequent communications are also subject to the privilege.
If you have any questions about this change in the law, please contact
Theresa Rambosek (trambosek@bbllaw.com) or 206.622.5511.
i See e.g. RCW 70.02.020 and 42 U.S.C.A. § 1320d-6, the federal Health Insurance Portability and Accountability Act (“HIPAA”).
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