Legal proceedings include the following situations in which testimony may be compelled to be given:
- Inquiries (whether conducted by a court, administrative agency, arbitrator, legislative body
The holder of privilege may be: (3 potential parties).
- The patient
- The guardian or conservator
- The personal representative of the patient
In general, the __________________ is always the holder of privilege (if there is no guardian or conservator).
When the patient lacks legal capacity, the ___________________________ is the holder of the privilege.
Guardian or conservator.
If the patient is dead, the ______________________ is the holder of the privilege.
Privilege may be claimed by: (3 potential parties).
- The holder of privilege
- An authorized person
- The psychotherapist
Only _______________________ may authorize a waiver of privilege and disclosure of confidential information or communication. When more than one person holds the privilege (e.g., in couples' therapy), one patient waiving privilege _______________ affect the other patient's right to claim privilege.
- The holder of privilege
- Does not
Privilege is waived whenever confidential information is disclosed by the patient to _____________________.
Unauthorized third persons.
The psychotherapist is generally required to claim privilege when the ___________________________ is sought to be disclosed; however, the therapist may not claim privilege if there is no holder of privilege in existence, or if the therapist is instructed by a person authorized to permit disclosure.
_____________________________ are situations in which a judge has the legal authority to order that confidential patient-therapist communications be disclosed in the course of a legal proceeding (e.g., court of law, deposition, admin. hearing).
Exceptions to privilege.
Evidence Code 1016: No privilege exists in proceedings in which the patient (or any party claiming through or under the patient) raises the issue of the patient's _________________________________.
Mental or emotional condition.
Example: Worker's comp. suit alleging stress secondary to employment. This does not apply to situations in which a patient is seeking compensation for damages that are only physical.
Evidence Code 1017: No privilege exists when the therapist is appointed by ______________ or by the _____________________ to examine the patient.
- The court
- Board of Prison Terms
Evidence Code 1023: Privilege doesn't exist in a proceeding initiated at the request of a _______________ in a criminal action suit to determine his or her sanity.
Evidence Code 1025: There is no privilege in proceedings brought by the patient to establish his or her ________________. (However, the psychologist must have informed the patient of the limits of confidentiality in advance of the evaluation).
Exceptions to privilege delineated in Evidence Codes 1017, 1023, and 1025 don't apply when the therapist is appointed by the court to provide _______________ with information upon which to ________________.
- The criminal defendant's lawyer
- Base the defense
Evidence Code 1018: No privilege exists if the services of a therapist were sought or obtained to aid anyone to ________________ or to escape _______________________ after commission of a crime.
- Commit a crime
- Detection or apprehension
Evidence Code 1019: There is no privilege as to communication that is specifically relevant to an issue between parties all of whom claim through a _______________ patient.
Evidence Code 1021: There is no privilege with regard to communication concerning a deceased patient's intent with regard to a ____________________________ executed by the patient, affecting an interest in property.
Deed, will, or other document.
Evidence Code 1022: There is no privilege with regard to communication concerning the _________________ of a deceased patient's deed, will, or other document executed by the patient, affecting an interest in property.
Evidence Code 1020: No privilege exists when either the therapist or the patient alleges a __________________ (e.g., malpractice suit initiated by the patient, use of a collection agency by the therapist because of nonpayment by the patient). Thus, if a patient sues a therapist for negligence, the professional may use the therapy records in his or her defense.
Breach of duty.
Evidence Code 1024: No privilege exists when the therapist believes that the patient's mental or emotional condition causes him/her to be a danger to himself or the person/property of others, and the disclosure is ___________________________________.
Necessary to prevent that danger.
Bonus: This usually applies to legal proceedings, most commonly when a patient who is put on a 5250 (14-day hold) challenges the hold and requests a certification review hearing.
Evidence Code 1026: No privilege exists when the therapist or patient is required to make a report, if such a report is open to ____________________.
Evidence Code 1027: No privilege exists when the patient is under ___ years of age and the therapist has reason to believe the child has been the victim of a crime, and the disclosure is in the best interest of the child. Thus, the patient, the parent, or guardian may not invoke privilege to keep information about a crime against the minor out of the court, if the therapist believes it is in the minor's best interest.
A ___________________ is a document that is served to someone who is not a party to a legal case; it requires that the person appear and testify, bring documents, or both. Failure to respond may result in being held in contempt of court.
The first step in responding to a subpoena is to:
Contact the patient and ascertain whether he/she wants to waive or invoke privilege.
If a patient invokes privilege, a therapist may ______________________ from the subpoena. If this request is denied, he or she must comply, appear at the specified time/place, and bring any documents required by the subpoena. At the proceeding, the therapist will assert privilege ____________________. The judge will determine whether or not the material is _____________________, and either quash the subpoena if the material is protected, or issue an order if the material falls under an exception to privilege.