Privilege
versus Confidentiality
by
Joseph Shaub, JD
Many
experienced clinicians in Washington don’t understand the basic
difference between Privilege and Confidentiality.
Of course, that’s understandable, since the Washington State
Legislature - the people who make the laws - get the terms mixed up
themselves.
Take
a look at the Revised Code of Washington (RCW) Section 18.19.180 that
discusses “Confidential Communications” and you will find language
about “privilege” lurking there.
Because
Privilege and Confidentiality are so fundamentally different
it is interesting that even the lawmakers get confused.
The
cleanest definition of these concepts is probably found in Keith-Spiegel
and Koocher’s Ethics in Psychology text:
“Confidentiality refers to a general standard of professional conduct
that obliges a professional not to discuss information about a client
with anyone.
Confidentiality may also be based in statutes (i.e. laws
enacted by legislatures) or case law (i.e. interpretations of laws by
courts).
But when cited as an ethical principle, confidentiality implies
an explicit contract or promise not to reveal anything about a client
except under certain circumstances agreed to by both parties.”
“Privilege (or privileged
communication) is a leal term describing certain specific types of
relationships that enjoy protection from disclosure in legal
proceedings. Privilege is
granted by law and belongs to the client in the relationship....A
client is usually not permitted to waive a privilege selectively.”
Generally
speaking, you can expect issues of privilege to arise in four
situations: (1) When a lawyer wants you to give a deposition and testify
about your client and the therapy; (2) When a lawyer seeks your file
pertaining to a client; (3) When a judge subpoena’s you to come to
court to testify about your client or the therapy and (4) When the judge
wants you to bring the records into Court as evidence.
It is a good practice to at least consult with a lawyer before
you provide any of this information.
Back
to Articles
