Learning Outcomes
After reading this article, you will be able to identify when physician-patient and psychotherapist-patient privileges apply, distinguish their scope and exceptions, and determine how these privileges may be waived or lost. You will be able to apply these rules to MBE-style questions, including recognizing when privilege is not available or has been overcome.
MBE Syllabus
For the MBE, you are required to understand the rules governing the confidentiality of communications between patients and their physicians or psychotherapists. This includes knowing the scope of these privileges, their exceptions, and how they may be waived. You should be able to:
- Recognize when physician-patient and psychotherapist-patient privileges apply in federal and state courts.
- Identify the scope of each privilege and the types of communications protected.
- Distinguish between the physician-patient and psychotherapist-patient privileges.
- Apply the main exceptions to these privileges, including waiver, crime/fraud, and disputes.
- Determine when privilege is lost or does not apply.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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In a federal court case, which of the following communications is most likely to be privileged?
- A patient’s statement to a physician consulted solely for trial testimony.
- A patient’s statement to a psychotherapist for treatment.
- A patient’s statement to a physician in the presence of a journalist.
- A patient’s statement to a friend about symptoms.
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Which of the following is NOT a recognized exception to the psychotherapist-patient privilege?
- Patient puts mental condition at issue.
- Dispute between patient and psychotherapist.
- Communication made for treatment.
- Communication made in aid of a crime.
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In most jurisdictions, which party holds the physician-patient privilege?
- The physician.
- The court.
- The patient.
- The prosecutor.
Introduction
Confidentiality between a patient and a medical or mental health professional is protected by privilege rules in many jurisdictions. These privileges are designed to encourage full disclosure for effective treatment. However, the scope, application, and exceptions to these privileges differ between physician-patient and psychotherapist-patient relationships, and between federal and state courts.
Key Term: Physician-Patient Privilege A rule that, in some jurisdictions, protects confidential communications between a patient and a physician made for the purpose of medical diagnosis or treatment from being disclosed in court.
Key Term: Psychotherapist-Patient Privilege A rule recognized in federal courts and most states that protects confidential communications between a patient and a licensed psychotherapist (including psychologists and social workers) made for the purpose of diagnosis or treatment of a mental or emotional condition.
Scope and Application
Physician-Patient Privilege
The physician-patient privilege is not recognized under federal common law but is recognized by statute in many states. It generally protects confidential communications made by a patient to a physician for the purpose of diagnosis or treatment.
- Applies only if a professional relationship exists and the communication is for treatment.
- Does not protect communications made for other purposes (e.g., for litigation only).
- The privilege is held by the patient, not the physician.
Psychotherapist-Patient Privilege
The psychotherapist-patient privilege is recognized in federal courts and nearly all states. It applies to confidential communications between a patient and a licensed psychiatrist, psychologist, or social worker for the purpose of mental health diagnosis or treatment.
- Broader than the physician-patient privilege in federal court.
- Covers communications for diagnosis or treatment of mental or emotional conditions.
- The privilege is held by the patient.
Key Term: Confidential Communication A communication made privately and not intended to be disclosed to third parties other than those necessary for diagnosis or treatment.
Exceptions and Waiver
Both privileges are subject to important exceptions and may be waived in certain circumstances.
Common Exceptions
- Patient puts condition at issue: If a patient sues for personal injury or mental distress, communications relevant to that condition are not privileged.
- Crime or fraud: Communications made in furtherance of a crime or fraud are not privileged.
- Dispute between patient and professional: If the patient sues the physician or psychotherapist (e.g., for malpractice or unpaid fees), relevant communications are not privileged.
- Waiver: The privilege is waived if the patient voluntarily discloses the communication to a third party or consents to disclosure.
Key Term: Waiver of Privilege The loss of privilege protection when the patient voluntarily discloses or consents to disclosure of the communication, or otherwise acts inconsistently with confidentiality.
Loss of Privilege
- Communications made in the presence of unnecessary third parties are not privileged.
- Communications not made for treatment or diagnosis are not privileged.
- In federal court, there is no physician-patient privilege unless state law applies.
Worked Example 1.1
A patient consults a licensed psychologist for anxiety. During therapy, the patient admits to feeling guilty about a past theft. In a later criminal trial for an unrelated theft, the prosecution seeks to compel the psychologist to testify about the patient’s admission. Is the communication privileged?
Answer: Yes. The communication was made to a psychotherapist for treatment, and the privilege applies. None of the exceptions (such as crime/fraud or patient putting mental condition at issue) are present.
Worked Example 1.2
A patient sues her physician for malpractice, alleging negligent treatment. The physician seeks to introduce records of their communications. Is the privilege available?
Answer: No. The privilege does not apply in disputes between the patient and the physician regarding treatment, such as malpractice suits.
Exam Warning
In federal court, the physician-patient privilege does not apply unless state law supplies the rule of decision. Do not assume this privilege exists in all cases.
Revision Tip
Always check who holds the privilege and whether the communication was made for treatment. Watch for waiver by disclosure to third parties.
Key Point Checklist
This article has covered the following key knowledge points:
- Physician-patient privilege is statutory, not recognized in federal common law, and applies only to confidential communications for treatment.
- Psychotherapist-patient privilege is recognized in federal and most state courts, covering confidential mental health communications.
- Both privileges are subject to exceptions: condition at issue, crime/fraud, disputes, and waiver.
- Privilege is lost if the patient discloses the communication to unnecessary third parties.
- The patient holds the privilege and may waive it.
Key Terms and Concepts
- Physician-Patient Privilege
- Psychotherapist-Patient Privilege
- Confidential Communication
- Waiver of Privilege
