Overview of Admissibility
An introduction to the use of therapy sessions in court
Therapy sessions are a form of psychotherapy and hence they are both confidential and communicate the views and observations of someone who has been qualified to study and practice psychotherapy. The essence of those qualifications is usually that a psychotherapist or therapist will not breach any confidentiality without good reason, for example where a child might be at risk of harm. Therefore, when therapists or psychologists are asked about their sessions with a patient they will refuse to disclose anything, unless there is something that falls into the category of something which definitely needs to be disclosed, as above. After all , the relationship between patient and therapist must be built on trust, and in order for that to be successful, anything discussed between those parties should be confidential.
However, in some cases, it may be possible to use sessions with therapists and psychologists. This is often used in care cases, for example, and can be very useful when it comes to evidence, if properly obtained.
Some therapists will not cooperate with family proceedings due to their own reservations about confidentiality, and you may find it useful to have a letter from a lawyer setting out the general parameters for information that may be released and confirming that it is not proposed to share details of therapy sessions beyond the court.
Legal and Confidentiality Concerns
American law generally recognizes a psychologist’s or therapist’s duty to maintain a patient’s confidentiality to even the police. However, it does not necessarily extend to third parties in a Custody/Visitation proceeding.
In order for the communications between a therapist and a patient to be admissible as evidence, it must be revealed in court. However, under certain circumstances, such as an emergency where the patient poses a danger to him or herself or to another person, or if information is divulged concerning abuse or the intent to commit a felony, confidentiality does not need to be maintained.
In the State of New Jersey: Under the Evidence Rules 505, comments made by a patient during a therapy session are generally regarded as privileged against disclosure as evidence in a court of law. However, there are exceptions to this rule which include a patient who intends to commit a crime or harmful act; in which case, a therapist may break confidentiality upon learning such information; or where the therapist needs to testify to the court about their own treatment of the patient.
Many states have made confidentiality one of the significant privileges recognized by its law, entitling a patient to claim the spouse-privilege from disclosure of his or her confidential communications to a therapist.
In some jurisdictions, the admission of evidence of communications occurring in the context of therapy may depend upon when the communications occurred (before or after separation or divorce was contemplated) or the content of the communication. The family court in New Jersey, for example, does not treat family therapy as privileged. More specifically, section 522 of New Jersey’s Rules of Evidence as it relates to Testimonial Exemptions, states that:
(c) Privileged communications. A communication between a patient and a therapist which was made for the purpose of diagnosis, treatment or other professional services. If the communication was made in the course of family therapy with respect to an issue which is the subject of a claim or defense, the communication shall be privileged and confidential, provided, however, that the privilege shall not apply to the extent that: …(3) The services were sought or obtained to enable a party to commit or conceal a crime (including 48 assault) or a serious infraction in advance of, in the course of, or in connection with any controversy between the parties who are family members or in connection with any controversy between the parties and a third party involving a claim or defense in a matter sought to be resolved in a proceeding.
While confidentiality is a concern for most parties to a custody/visitation action with regard to therapy report – there may be steps an attorney can take to mitigate the effects of this issue. Disqualification of an expert witness based upon a relationship with the patient or client is a viable choice; however, may require a showing to the court that the relationship is too close, resulting in a lack of objectivity or a bias.
A more common approach would be to provide a written request and/or consent to the patient from the therapist informing them of the legal guidelines and pertinent policy on the issue.
When a Court Can Subpoena Therapy Notes
The general rule is that a therapist cannot be forced to reveal information from a therapy session if the patient has expressed a desire for it to remain confidential. That said, there are circumstances in which therapy notes can be subpoenaed for use in court despite these rules about confidentiality.
For example, if a therapist is subpoenaed to appear in court as a witness, the notes that he or she takes about specific sessions can be introduced into evidence in the case. If the therapy was sought because of an intention to engage in violent behavior, and there is evidence sufficient to hold the therapist in contempt of court, there are limited circumstances for court use of a therapist’s notes. If a child is allegedly abused or neglected, the therapist can be asked to disclose the records pertaining to that child. If the therapist has reasonable cause to suspect abuse or neglect, he or she must break confidentiality to report the abuse or potential abuse to police or child welfare services. A therapist may be required to disclose notes, reports, records, and other information related to counseling for purposes of an inquiry, investigation, or proceeding regarding licensure, certification, or authorization to engage in the provision of mental health services.
The Privilege Regarding Therapists and Clients
The therapist-client privilege statute is a legal rule that governs the extent to which conversations between a patient and a mental health professional can be disclosed in a court of law. In general, this rule says that a therapist cannot be forced to testify about these conversations because doing so would violate patient rights. However, there are specific exceptions to this rule when it comes to court cases.
The legal concept of therapist-client privilege is designed to keep communication in therapy private. There are some limits for this type of communication, however, that allow judges to permit the disclosure of certain information that may be relevant for a case. The limits on therapist-client privilege are as follows:
Exceptions to these limits are seen mostly in cases for which a minor might have been involved. A typical scenario in which a judge might allow the disclosure of specific therapist-patient conversation is a divorce case in which one spouse might be trying to prove in court that a child was subject to physical or emotional abuse by a parent.
In the event that you think your spouse may use conversations gained through therapy against you in court, it may be beneficial to speak with your attorney. Otherwise, in most situations, the details of your conversations with your therapist should be protected.
Effect on Psychotherapy and the Therapist-Client Bond
The potential for therapy sessions to be used in a court proceeding can affect the client whether or not the therapy client is the one contemplating or in the process of a divorce, separation or other family law proceeding. This is so because the potential legal implications and the possible fear of how a clinician’s notes may be used, may affect the client’s participation in therapy in a number of ways:
These considerations do not mean that a client should not seek therapy. In fact , the exact opposite is true as few would dispute the benefits to individuals and/or families with children of all ages who commit themselves to a therapeutic process designed to help all involved. It is important for clients to understand that their getting help and receiving the benefits of such help is not changed because the therapist’s notes may ultimately be reviewed in a court proceeding.
Case Law and Precedents
Various court cases illustrate the guidelines around the admissibility of therapy session transcripts or recordings.
In the landmark case of Brown v. Twenty First Judicial Dist. Ct., 615 So. 2d 1300 (La. 1993), the holding was that "a patient-therapist privilege applies to the therapeutic communications between physician and patient. This privilege sharply distinguishes between medical therapy and purely forensic examinations. A therapist must not be put in the position of being a hired gun for one of the parties. The communication is confidential because of the relationship of trust patients naturally have with their therapist for diagnosis and treatment." It placed safeguards that limit the ability of the courts to introduce therapeutic records. The court further stated that a patient "is not compelled to involuntarily reveal his innermost secrets" to a therapist when he enters therapy, and therefore the testimonial privilege must be protected while holding that patients can waive the privilege upon signing a release form.
Added protections were established in United States v. Durbrow, 740 F.2d 61 (8th Cir. 1984) that subsectioned the previously less explicit 52 to 54 sections of the sentence in the above-mentioned case to include that this privilege of the therapist applies to disclosure in the following situations: (1) use in civil actions where the patient may be a party, (2) use in criminal cases, (3) except in cases of clear abuse of discretion, the testimony of past therapists, and (4) disclosure of statements to administrative tribunal members in civil actions.
In Baird v. Baird, 570 N.W. 2d 582 (Wis. Ct. App. 1997) the court held that for this privilege to apply, "the disclosure must be made in confidence, and the communication must have been entered into for the purpose of rendering a diagnosis and treatment." It further held that the evidentiary privilege for the disclosure applies only to communications between a physician and patient, and that "a therapist will not be permitted to disclose his opinions regarding the patient’s condition, problems and feelings, especially where such opinions and conclusions are based upon confidential communications between him and his patient."
In U.S. v. Zane, 768 F.Supp. 255 (N.D. Cal. 1991) the court maintained that the "rationale behind the confidentiality privilege is that the communication and therapeutic progress depend upon the trust and confidence that the full disclosure of all relevant facts to the therapist. The court held that complete disclosure is a condition precedent to the therapist’s ability to render a helpful diagnosis and formulate an appropriate treatment plan and, therefore, the therapist-patient communication is privileged from disclosure."
One final case worth noting is U.S. v. Routon, 2009 WL 2069960 (D. Col. 2009), where the court held the opinion that the decision as to whether the defendant would use a mental health expert to testify would be more useful after the defendant submits to a mental examination. It held that the defendant was required to submit to a mental examination to determine whether designated criteria were satisfied before they could present testimony by mental health experts.
Points of Guidance for Clients and Therapists
Clients should immediately and explicitly bring up the possibility of a legal case at the outset of the treatment process, specifying whether they are seeking therapy merely as a treatment or also as a legal safeguard. Similarly, therapists should elicit from clients or guardians any suspicion or knowledge of potential legal action against the client, in order to properly assess how therapy may impact such cases. Everyone involved in the therapeutic process should inform themselves of state-specific laws governing confidentiality and corresponding "privilege" which may affect the way therapists handle information about clients upon legal subpoenas. Although therapists across the country generally uphold the duty of confidentiality as a sacred trust , some states have options for courts to explicitly order disclosure by therapists. Such alternatives increase the risk that a therapist’s communications with a client may be contested and may result in a legal battle over what testimonial rights the therapist has as part of his or her therapeutic privilege to protect client information. If and when therapists need to give testimony about therapy sessions subject to subpoena, it is advisable that they consult an attorney to determine the best way to do so.