DOCUMENT RESUME ED 083 748 Privileged Communications

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DOCUMENT RESUMEEA 005 604ED 083 748AUTHORTITLESPONS AGENCYRobbins, Jerry H.Privileged Communications by Psychologists, SocialWorkers, and Drug and Alcohol Specialists.Governor's Office of Education and Training, Jackson,Miss.PUB DATENOTENov 73EDRS PRICEDESCRIPTORSMF- 0.65 HC- 3.29*Communication (Thought Transfer); *Confidentiality;Counselors; Drug Abuse; Drug Education; EthicalValues; *Ethics; Models; Psychologists; SocialWorkers; Specialists; *State Laws; *StateLegislation*Privileged CommunicationIDENTIFIERS30p.ABSTRACTUnder the laws of the United States, privilegedcommunications are strictly limited to a,few well-defined categories,such as communications between attorney and client, clergyman andpenitent, a-id physician and patient. Certain official documents arerecognized as privileged, and a privilege is accorded law enforcementofficers to decline to reveal confidential sources of information.This paper discusses the 'status of legislation on privilegedcommunication according to (1) Mississippi statutory law, (2)statutory law in five other States, (3) major cases that have been inMississippi courts, (4) the status of the case law on the subjectelsewhere, (5) model legislation that has been proposed or-zecommendatiohs for legislative action proposed by various agencies,ai"d provides (6) recommendations developed on the basis of thematerial pcesented in the paper. (Author/MLF)

U.S. DEPARTMENT OF HEALTH,EDUCATION & WELFARENATIONAL INSTITUTE OFEDUCATIONTHIS DOCUMENT HAS BEEN REPRODUCED EXACTLY AS RECEIVED FROMTHE PERSON CR ORGANIZATION ORIGINATING IT POINTS OF VIEW OR OPINIONSSTATED DO NOT NECESSARILY REPRESENT OFFICIAL NATIONAL INSTITUTE OFEDUCATION POSITION OR POLICYPRIVILEGED COMMUNICATIONS EY PSYCHOLOGISTS, SOCIAL WORKERS,AND DRUG AND ALCOHOL:SPECIALISTSbyJerry H. Robbins, Ed.D.This paPer:iS one of a series sponsored by the Governor'sSpecial. thanks must go toOffice of Education and Training.Governor William Waller and Dr. Milton. Baxter, Executive Directorof the Governor's Office of Education and Training, for Providingthe support for the research and writing that have gone intothese papers.Each of the papers in this series is designed to speak(1) What is the statutory law into the following questions:Mississippi on the subject, if any? (2) That is the statutorylaw in approximately five other states on the same subject? (3)What major cases, if any, have been in courts in Mississippi?(4) In very general terms, what is the status of tht case law(5) What model legislation, if any,on the subject elsewhere?has been proposed or what recommendations for legislative action,if any, have been proposed by various agencies? (6) Whatrecommendations seem to follow from the information presentedin the answers to questions 1-5?The author wishes to acknowledge the assistance indeveloping this paper of Dr. Dudley Sykes, Associate Professorof Guidance and Educational Psychology, and George Lyles,student in the School of Law, both of The University of Mississippi.University, MississippiNovember, 1973FILMED FROM BEST AVAILABLE COPY

U.S. DEPARTMENT OF HEALTH,EDUCATION & WELFARENATIONAL INSTITUTE OFEDUCATIONTHIS DOCUMENT HAS BEEN REPRODUCCD EXACTLY AS RECEIVED FROMTHE PERSON OR ORGANIZATION ORIGINATING IT POINTS OF VIEW OR OPINIONSSTATED DO NOT NECESSARILY REPRESENT OFFICIAL NATIONAL INSTITUTE OFEDUCATION POSITION OR POLICYPRIVILEGED COMMUNICATIONS BY PSYCHOLOGISTS, SOCIAL WORKERS,AND DRUG AND ALCOHOL SPECIALISTSbyJerry H. Robbins, Ed.D.It is generally accepted that the privileged communications are those made by persons holding a certain confidentialrelation.In particular, these are those of physician andpatient, attorney and client, clergyman or priest and penitent,husband and wife, government and informer, and sometimes a fewothers.The tendency in legal circles is not to extend theclasses to which the privilege from disclosure is granted, butto restrict that privilege.A privileged-communication statute affords protectiononly to those relationships specifically named therein.Acourt may not prescribe such privilege in behalf of any particular class, but the legislature may do so.The very factthat testimonial privileges are based on specified confidentialrelations is proof that they do not extend to all such relations.(1)Under the laws of the United States, privileged communicaticns are strictly limited to a few well-defined categories, suchas communications between attorney and client, clergyman andpenitent, and physician and patient.Certain official documentsare recognized as privileged, and a privilege is accorded lawenforcement officers to decline to reveal confidential sourcesof information.(2)

As of 1971, of.the fifty states and the District ofColumbia, twelve did not have a physician-patient privilege.Mississippi has such a privilege.Five .states, not includingMississippi, had a separate psychiatrist privilege; four ofTwo states, Californiathese did not have a physician privilege.and Maryland, had a privilege .encompassing both psychologistsand psychiatrists.All but fifteen states and the District ofColumbia had a psychologistprivilege.Mississippi has such aNew York,and, quite recently, Michigapprivilege.a privilege for certain certified social workers.establishedColorado,Michigan, New Jersey, and Oregon provided a privilege formarriage counselors.(3)I.PSYCHOLOGISTSStatutory LawMississippi.gist"The laws of Mississippi define a "psycholo-as follows:.a person who represents himself as such by holdinghimself out to the public by any title or description ofservices which incorporates the words, "psychological,""psychologist," "Psychology," or a person who describeshimself as above, and under such title or descriptionoffers to render or renders services involving theapplication of principles, methods, and procedures ofthe science and profession of psychology to personsfor compensation or other personal gain. (4).The "practice of psychology" is defiried as follows:.the application of principles of learning, motivation, perception, thinking, and emotional relationshipsto problems of personnel evaluation, group relations,and behavior adjustment by persons trained in psychology.The application of said principles includes, but is notrestricted to, counseling, guidance, and behavior modification with persons or groups; with adjustment problemsin the areas of work, family, school, and personal

relationships; human engineering; personnelselection; measuring and testing personality, intelligence, aptitude, enotions, public opinion,attitudes, and skills; and doing research on problemsrelating to .human behavior. (5)Communication is privileged by the following section:A psychologist shall not be examined without the consentof his client as to any communication made by the clientto him or his advice given thereon in the course of professional employment; nor shall a psychologist'S::secretary, stenographer or clerk beexamined withoutthe consent of his employer concerning any fact, theknowledge of which he has acquired in such capacity. (6)Arkansas.In Arkansas privilege is extended topsychologists in the Zollowing way:For the purpose of this Act, the confidential relationsand communications between licensed psychologist orpsychological examiner and client are placed upon thesame basis as those provided by law between attorneyand client; and nothing in this Act shall be construedto require any such privileged communication to bedisclosed. (7)California.In California, "psychotherapist" is definedto include psychiatrists; psychologists; clinical social workers;school psychologists; and licensed marriage, family and childcounselors.Privilege is extended to these in the followingway:As used in this article, "confidential communicationbetween patient and psychotherapists' means information,including information obtained by an examination of thepatient, transmitted between a patient and his psychotherapist,in the course of that relationship and inconfidence by'a means which, so far as the patient isaware, discloses the information to no third personsother than those who are present to further the interest.or those to whomof the patient in the consultation.disclosure is reasonably necessary for the transmissionof the information or the accomplishment of the purpose.for which the psychotherapist is consulted, andincludes a diagnosis made and the advice given by thepsychotherapist in the course of that relationship. (8).

Florida.In Florida privilege -is extended to psychologistsas follows:(1) A person who, for the purposes of securing psychological diagnostic assessment or counseling, consults apsychologist licensed to practicapsychology in thisstate, except as hereinafter provided, in civil andcriminal cases, in proceedings preliminary thereto,.andin legislative and administrative proceedings, has aprivilege-to refuse to disclose and to prevent a witnessfrom disclosing communications between himself and thepsychologist or between members of his family and thepsychologist or records relating to his diagnosticpsychological testing or counseling.(2) There shall be no privilege for any relevant communications under this section:(a) If a.judge finds that the person evaluated by apsychologist, after having been informed that thecommunications would not be privileged, has made communications to a psychologist in the course of apsychological examination ordered by the court.However,such communications shall he admissable only on issuesinvolving a person's mental or psychological condition;(b) In a criminal or civil proceedings in which the personintroduces his mental or psychological condition as anelement of his claim or defense:or, after his death,when said condition is introduced by any party claimingor defending through or as his beneficiary. (9)Indiana.Privilege is extended to psychologists inIndiana under the following statute:No psychologist certified under the provisions of thisact shall disclose any information he may have acquiredfrom persons with whom he has dealt in his professionalcapacity, except under the following circumstances:' (1)in trials for homicide where the disclosure related directly to the fact or immediate circumstances of saidhomicide; (2) in proceedings the purpose of which is todetermine mental competency, or in which a tlefense ofmental incompetency is raised; (3) in actions, civil orcriminal, against a psychologist for malpractice; (4)upon an issue as to the validity of a document as a willof a client; and (5) with the expressed consent of theclint or subject, or in the case of his death or disability of his legal representative. (10)Montana:The confidential relationship between

psychologist and client is defined in :'Iontana in this way:The confidential relations and communications between apsychologist and his client shall he placed on the samebasis as provided by law for those between an attorneyand his client.Nothing in this act or any other shallbe construed to require such privileged communicationsto be disclosed. (11)New York.In New York a psychologist has the right ofprivileged communication under the following law:The confidential relations and communications between apsychologist registered under the provisions of articleone hundred fifty-three of the education law and hisclient are placed on the same basis as those providedby law between attorney and client, and nothing insuch article shall beconstrued to require any suchprivileged communications to be disclosed. (12)Tennessee.The confidential relations between psycholo-gist and client are defined in Tennessee in a similar way.For the purpose of this chapter, the confidentialrelations and communications between licensed psychologist or psychological examiner and client are placedupon the same basis as those provided by lawbetween attorney and client and nothing in thischapter shall be construed to require any suchprivileged communication to be disclosed. (13)Case LawNo significant cases involving privileged communicationsbetween psychologists and their clients were found, either inMississippi or elsewhere.This may be due to the fact thatthis privilege did not exist in common law, and hence isstrictly statutory.II.SOCIAL WORKERSVery few states have enacted laws extending the right of

privileged communication to social workers.Apparently thereis no statutory basis for privileged communication betweensocial workers and clients in Mississippi.Statutory LawCalifornia.As noted in the previous section, Californiahas extended the right of privileged communication to "psycho-therapists," where epsychotherapist" is defined to includeclinical social workers and licensed marriage, family and childcounselors.However, in order to be licensed as a clinicalsocial worker or as a marriage, faMily and child counselor,person must be affiliated with a licensed clinical social workerscorporation.The California law carefully defines how such acorporation is registered.Michigan.(1.4),(15)Effective July 1, 1973, Michigan providedfor the registration and certification of social workes, andextended privileged communication to sucr social workers.InMichigan,"Social work" means the professional activity of helping individuals, groups or communities to enhance orrestore their capacity for social functioning andcreating conditions favorable to this goal. Socialwork practice consists of the professional applicationof social work values, principles and techniques to 1or more of the following ends: helping people obtaintangible services; counseling with individuals, familiesand groups; helping communities or groups provide orimprove social and health services; and participatingin relevant legislative processes. The practice ofsocial work requires knowledge of human development andbehavior; of social, economic and cultural institutions;and of the interaction of all these factors. (16)The Michigan law adds:After April 1, 1974, an 1.ndividual shall not representhimself as a certified social worker, social worker orsocial work technician unless he is certified andregistered under this act. (17)

7Privileged communication is extended to social workersin the following way:.(1)A person registered as a certified social worker,social worker or social work technician or an employeeor officer of an agency for whom the certified socialworker, social worker or social work technician isemployed shall not be required to disclose a communicationor any portion of a communication made by his clientto him or his advice given tharaon in the course of hisprofessional employment.(2)A communication between a certified social worker,social worker or social worker technician, or an agencyof which the certified social worker, social worker orsocial work technician is an agent and a person counseledis confidential.This privilege is not subject to waiverexcept when the disclosure is part of the required supervisory process within the agency for which the certifiedsocial worker, social worker or social work technicianis employed; or except where so waived by the client ora person authorized to act in his behalf. The certifiedsocial worker, social worker or social work technicianshall subMit to the appropriate case a written evaluationof the prospects or prognosis of a particular case without divulging facts or revealing confidential disclsouresAn attorneywhen requested by a court for a court action.representing a client who is subject of such an evaluationshall have the right to receive a copy of the report.Where required for the exercise of a public purpose bya legislative committee the certified social worker,social worker, social work technician or agency representative may make available such statistical and programinformation without violating the confidentiality of theclient.(18)New York.A person duly registered as a certified socialworker under the laws of the State of New Yorkshall not be required to disclose a communication madeby his client to him, or his advice given thereon, inthe course of his professional employment, nor shallany clerk, stenographer or other person working forthe same employer as the certified social worker or forthe certified social worker be allowed to disclose anysuch Communication or advice given thereon; exceptthat a certified social worker may disclose such information as the client may authorize;1.

8that a certified social workerlshall not be required2.to treat as confidential a communication by a clientwhich reveals the contemplation of a crime or harmful act;,where the client is a child under the age of sixteenand the information acquired by the certified social worker indicates that the client has been the victim or subjectof a crime, the certified social worker may he requiredto testify full in relation thereto upon any examination,trial or other proceeding in which the commission of suchcrime is a subject of inquiry;-3.where the client waives the privilege by bringingcharges against the certified social worker pursuantto section seventy-seven hundred seven of the educationlaw where such charges involve confidential socialworker. (19)4.Marriage counselors.A few states license marriage counse-lors, of which New Jersey is an example.In such instances, itmay be argued that social workers or at least certain types ofsocial workers would or may fall under the provisions of thelegislation.In New Jersey confidential communications betweenthe marriage counselor and the client are defined as follows:Any communication between a marriage counselor and theperson or persons counseled shall be confidential andits secrecy preserved. This privilege shall not besubject to waiver, except where the marriage counseloris a party defendant to a civil, criminal or disciplinaryaction arising from such counseling, in which case, thewaiver shall be limited to that action. (20)Restricted privilege.According to a 1965 summary of thelegal status of social workers, it was found that2\ few states declare that public officers cannot beCertain social workers, such asforced to testify. (21)juvenile, probation or parole officers conceivably comewithin the scope of such a privilege.Also many state legislatures, either in conjunctionwith federal grant-in-aid programs or on their own initiative, have enacted statutes granting a privilege to participants in particular welfare programs. Informationmay be privileged if it was given to adoption, (22) health.and safety agencies, (23) mental institutions, (24)maternity hospitals, (25) or departments of unemploymentcompensation; (26) or if it appears in drug addiction, (27)

alcoholism, (28) venereal disease, (29) eye disease, (30)probation and parole, (31) or child welfare records; (32)or in the records of social welfare, (33) vocationalrehabilitation, (34) juvenile court, (35) probation andparole, (36) or domestic relations proceedings, (37),(38)In addition to these examples of restricted cOmmunications, the Social Security Act makes mandatory, on all statesreceiving federal funds as grants -in --aid, the inclusion of aconfidentiality clause in their own enabling statutes.section 2 reads, in part:must.Thus"A State plan for old-age assistance.provide safeguards which restrict the use of disclosure.of information concerning applicants and recipients to purposesdirectly connected with the administration of old-age assistance."(39).Similar provisions apply to aid to dependentchildren; aid to the blind, the permanently and totally disabled,etc.(40)Case LawThere appears to be no case law directly affecting privileged communication of social workers or those in relatedfields in Mississippi.However, in other jurisdictions, there have been a fewcases.Only as recently as 1930 does there appear what seems tobe the earliest case specifically ruling on the issue of privileged communication as related to the social work profession. (41)In this case a social agency asserted the privilege as a defenseagainst producing case records in court.privilege.The court sustained theBut in a subsequent case, occuring shortly thereafter,in the same court, with another justice presiding, the defensewas struck down.(42)

10Thereafter, courts in Texas, Pennsylvania, Ohio, New York,Indiana, the District of Columbia, California, and Wisconsinheld that there was no social worker privilege of confidentialcommunication in the absence, of a statute expressly grantingsuch a privilege.(43)By. 1965, only three cases had granted protection to con-fidential communications between a social worker and his client,in the absence of a statutory provision, one of which was aCanadian case. .(4.4)One recent case was in Wisconsin.The Supreme Court ofthat state upheld a lower court which had found the defendantguilty of indecent behavior with a child and of having sexualintercourse with a child.In ruling on this matter, the courtheld that "public policy is not so definitely compelling orclear or the area so limited as to compel it to grant testimonialconfidentiality by court decision to social workers."In par-ticular, the court found that where no action for divorce orlegal separation was pending, "inculpatory statements" made bythe defendant to a social worker at a mental health clinic to whichthe defendant and his wife went on a self-referral basis were notinadmissable.(45)III.DRUG AND ALCOHOL SPECIALISTSThe employment of drug and alcohol specialists in thepublic schools is still a relatively uncommon matter.However,9the fact that Mississippi has now provided for at least one suchperson in each school district brinas close to home the ricThts,

11if any, of such persons to enjoy privileged communicationwithstudents and others.Statutory LawMississippi.The recently-enacted law establishing adrug education program in the public schools of Mississippiincludes the following provisions:Section 1,The purposes of this act are:(1)to provide for establishment of a drug education program in the public schools of this state, (2) toprovide a method of financing said program, and (3)to provide for the training of drug educationspecialists.Section 2.The State Board of Education is herebyauthorized to develop a program of drug education tobe used in every school district of the state whichshall be directed toward students, in both publicand nonpublic schools, adults and community.organizations.Section 3.Beginning with school year 1973-74,no funds shall be disbursed to any school districtunder the provisions of this section until such schooldistrict shall have employed a qualified drug educationspecialist.It is the express intent of this act thatthese drug education specialists shall not be utilizedin any other capacity upon return to the school system.Section 5 (c) The State Department of Education andthe state agency established under Section 409 of PublicLaw 92-255 shall have the joint responsibility of developing and administering a program of training for the drugeducation specialists. This training program shall include appropriate participation by authoritie:, in thefields of education, sociology, medicine, pharmacy,psychology, psychiatry, law and law enforcement. Nodrug education specialist may be employed who has notcompleted the training proscribed in this section andwho does not have at least an "A" teacher's certificate(A6)and one (1) year of teaching experienceConnecticut.al employee" asIh Connecticut the laws define a "profession-

12a person employed by a school who (A) holds a certificatefrom the state board of education, (B) is a member of afaculty where certification is not required, (C) is anadministration officer of a school, or (0) is a registerednurse employed by or assigned to a school. (47)A "professional communication" isany communication made privately and in confidence by astudent to a professional employee of his school in thecourse of the latter's employment. (48)The Connecticut law further provides thatAny such professional employee shall not be required todisclose anyinformation acquired through a professionalcommunication with a student, when such information concerns alcohol or drug abuse or any alcoholic or drugproblem of such student but if such employee obtainsphysical evidence from such student indicating that acrime has been or is being committed by such student,such employee shall be required to turn such evidenceover to school administrators or law enforcement officials,provided in no such case shall such employee be requiredto disclose the name of the student from whom he obtainedsuch evidence and such employee shall be immune fromarrest .and prosecution for the possession of suchevidence obtained from such student.Any such professional employee 'who, in good faith, discloses or does not disclose, such professional communication, shall be immune from any liability, civilor criminal, which might otherwise be incurred or imposed,and shall have the same immunity with respect to anyjudicial proceeding which results from such disclosure. (49)Maryland.In 1971 the state of Maryland provided by lawthat a program of drug education shall be instituted in the publicschools as soon as practicable by instructors who have beentrained in the field of drug education.In addition, Marylandprovided that(a) Whenever a student shall seek information for thepurpose of overcoming any form of drug abuse, as definedin 52(d) of Article 43B of this Code, from any teacher,counselor, principal or other professional educatoremployed by an educational institution approved under

the provisions of 55 11 and 12 of this article, nostatement, whether oral or written, made by the studentand no observation or conclusion derived shall beadmissible against the student in any proceeding.The disclosure of any reports, statements, ob(b)servations, conclusions and other information whichhas been assembled or procured by the educator throughthis contact, shall not be requiredanv rule,regulation or order of any kind. (50)Michigan.A 1972 Amendment to the Michigan laws extendsprivileged communication to "professional persons" engaged in"character building" in the public schools.As such, this wouldprobably extend privileged communication to persons such asdrug and alcohol specialists in the schools.However, inaddition, it would seem to include teachers, administrators, andothers as well.The Michigan law reads:No teacher, guidance officer, school executive or otherprofessional person engaged in character building in thepublic schools or in any other educational institution,including any clerical worker of such schools and institutions, who maintains records of students' behavioror who has records in his custody, or who receives inconfidence communications from students or other juveniles,shall be allowed in any proceedings, civil or criminal,in any court of this state, to disclose any informationobtained by him from the records of such communications;nor to produce records or transcripts thereof, exceptthat testimony may be given, with the consent of theperson so confiding or to whom the records relate, ifthe person is 18 years of age or over, or, if the personis a minor, with the consent of his or her parent orlegal guardian. (51)Counselors.In the course of their work, counselors oftencome into contact with drug and alcohol problems.In addition,a number of nississippi school districts have hired personscertified as counselors as drug and alcohol specialists.As aresult, it was decided to investigate the statutes extending the

14right of privileged communication to counselors.1.Connecticut and Michigan, as noted above, have ex-.tended the right of privileged communication to profeSsionalemployees, including counselors.2.Indiana provides thatAny counselor duly appointed or designated a counselorfor the school system by its proper officers and for thepurpose of counseling pupils in such school system shallbe Immune from disclosing any privileged or confidentialcommunication made to such counselor as such by any pupilherein referred to.Such matters so communicated shallbe privileged and protected against disclosure. (52)3.North Dakota provides thatFor the purpose of counseling in a school system, anyelementary or secondary school counselor possessing avalid North Dakota guidance credential from the department of public instruction, and who has been duly appointed a counselor for a school system by its properauthority, shall be legally immune from disclosing anyprivileged or, confidential communication made to suchSuch communicationcounselor in a counseling interview.shall be disclosed when requested by the counselee. (53)4.Pennsylvania provides thatNo guidance counselor, school nurse, or school psychologistin the public schools or in the private or parochial schoolsor other educational institutions providing elementaryor secondary education, including any clerical workerof such schools and institutions, who, while in the courseof his professional duties for a guidance counselor,school nurse or school psychologist, has acquired information from a student in confidence shall he compelledor allowed without the consent of the student, if thestudent is eighteen (18) years of age or over, or if thestudent is under the age of eighteen (18) years, withoutthe consent of his or her parent or legal guardian, todisclose that information in any legal proceeding, civilor criminal, trial, investigation before any grand, traverseor petit jury, any officer thereof, before the GeneralAssembly or any committee thereof, or before any commission, department or bureau of this Commonwealth, ormunicipal body, officer or committee thereof. Notwithstanding the confidentiality provision of this section,no such person shall be excused or prevented from comply.relating to gross physical neglecting with the act.of, or injury to children under eighteen years of age;.

15requiring repts in such cases by examining physiciansor heads of institutions to county public child welfareagencies; .-. (54)Case LawThere ap

DOCUMENT RESUME ED 083 748 EA 005 604 AUTHOR Robbins, Jerry H. TITLE Privileged Communications by Psychologists, Social. Workers, and Drug and Alcohol Specialists. . psychologist registered under the provisions of art

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