7.3 Privilege and Privileged Communication
Privilege is the legal concept that bans disclosing confidential information obtained in counseling in legal proceedings (APA, 2003). In other words, clients have a right to say how their personal information, verbal and written, is used (APA, 2003). The Jaffee vs. Redmond case 1996 solidified the legal implications for navigating confidentiality and testimonial privilege and is explained further below.
Jaffee vsersus Redmond (1996)
Redmond, an on-duty police officer, killed Allen who is represented in this case by Jaffee. Redmond then engaged in counseling with Dr. Karen Beyer, a licensed social worker. Courts summoned notes from their counseling sessions as evidence in the trial, and Dr. Karen Beyer pushed back citing the client’s right to confidentiality in counseling. At first, the courts rejected this argument and approved the counseling notes as evidence. Ultimately, this decision was overturned, ruling that counseling notes are protected under client privilege. Overall, this case established testimonial privilege for clients, or the separation of counseling data from legal proceedings (Jaffee v. Redmond, 1996).
In counseling, privilege can also be understood in the context of confidentiality. Confidentiality is a central pillar of counseling, and its limitations are ultimately for the welfare of the client (Younggren, 2008). The main differences between confidentiality and privilege are how, when, and why they are broken (Younggren, 2008). Privilege is broken for legal purposes, which are not necessarily for the person’s benefit. State statutes contain language around confidentiality and privilege, and counselors are responsible for understanding the legal landscape of their jurisdiction. Failing to do so can harm the client and have professional consequences (Younggren, 2008). In general, counselors are responsible for balancing ethics and legal statutes in making decisions related to client privilege.
Case Example: Gene Chase
The following is an actual case study that illustrates confidentiality and testimonial privilege.
Gene Chase was a client of psychiatrist Dr. Kay Dieter in 1997. In one of their sessions, Chase reported he had thoughts about murdering some individuals, and he showed Dr. Dieter a list of his intended victims he kept in his day planner. The list included two FBI agents who had investigated Chase in the past. Dr. Dieter consulted with her lawyer, and they determined she had a duty to break confidentiality and warn the potential victims on her patient’s list. Dr. Dieter fulfilled her duty to warn, and Chase was ultimately arrested and prosecuted for his threats against FBI agents. The prosecution ordered Dr. Dieter to testify against Chase regarding the threats, and Dr. Dieter’s lawyer objected to this under a counseling client’s right to testimonial privilege. They instead maintained that Dr. Dieter’s need to break confidentiality existed only to protect potential victims, and this need ceased to exist after such a threat was managed. There were no legal grounds for her to break confidentiality in the trial against her client.
The court denied this position, and Chase was convicted. Chase later appealed the decision, and the court of appeals ultimately ruled that Dr. Dieter’s testimony was indeed a violation of client testimonial privilege.