Privileged Communication: PsychiatricIMental Health Nurses and the Law

by Jimmie Smith, RN, MSN

This article examines the issues of confidentiality

and privileged communication as they relate to

psychiatriclrnental health nursing practice. It

includes a discussion of statutory and case law,

arguments for and against privileged

communication, and several examples of how

these issues effect psychiatriclmental health

nurses and their practice.

c l i e n t s who seek psychiatric treatment often reveal highly intimate, distressful, and possibly denunciatory information about their private lives, thoughts, and feelings. Therapeutic interventions rely heavily on the clients‘ willingness to talk openly, honestly, and without fear of disclosure to others. This willingness has a major impact on the effectiveness of therapeutic interventions.

Psychiatric nurses, especially clinical nurse specialists, are faced with a dilemma in the area of confidentiality. As professional nurses they have an obligation to hold all information in confidence. The clients’ welfare and trust could be jeopardized by injudicious disclosure of information provided in confidence (Benjamin & Curtis, 1986). Yet psychi- atric/mental health nurses are also employees of psychiatric institutions. They are charged with securing information from the client and sharing that information with other concerned staff members and outside agencies. Also, psychiatric/mental health nurses may be required by state law to disclose confidences in a court of law if there are criminal charges against the client.

In 1928 privileged communication was granted to physicians in New York. Before World War I1 no state granted privileged communication between psychotherapists and their patients (Knapp & VandeCreek, 1987). Since that time about 80% of the states have granted privileged communication to psychologists, and about 50% have passed laws for social workers. Psychiatrists are covered under specific statutes in approximately 40% of the states, or under physician-patient privilege in about 60% of the states (Knapp & VandeCreek, 1987).

Privileged communication statutes for nurses have been granted in Arkansas, Iowa, Louisiana, Minnesota, Mississippi, New York, Vermont, and Wisconsin. Iowa’s statute covers nurses under “mental health professionals” but nurses are not covered by a statute specific to nurses. It is always wise for nurses to inquire within the state in which

26 Perspectives in Psychiatric Care Vol. 26, No. 4,1990

they practice to determine if a privileged communication statute for nurses does exist.

Reporting and Testifying

Occasionally, psychiatric nurses see a client in a therapeutic session in which the client reveals information related to child abuse. Information related to child abuse is not protected by privileged communication statutes, but all other communication divulged during the sessions is confidential.

Psychiatric nurses routinely are called upon to testify in court as to the client’s competency to stand trial. In Tennessee, clinical nurse specialists employed by the state can be certified to testify about the client’s competency to stand trial. As a ”Friend of the Court,” information obtained for this purpose is not privileged. The client is notified at the time of the interview that information divulged will be reported in a court of law, depending on the state statute. The client is also told of the criminal charges brought against him/her, and the potential consequences of those charges (Laben & MacLean, 1983).

Duty to warn. A landmark case in California, Tarasoff v. Regents of University of California, (19761, established that it was a therapist’s duty to warn endangered third parties if a patient intended to harm them. Other decisions have followed the California ruling, including the duty to warn for possible property damage and for failure to commit a patient who later harmed an unknown third party (Peck v. The Counseling Center of Addison County, 1985; Peterson v. State, 1983; and Laben & MacLean, 1983). Nurses need to be aware if there is a law in their state related to duty to warn. The duty to protect is evoked whenever a patient presents a danger to others. Confidentiality does not apply because the duty to protect supersedes the privileged communication statute. The clinical nurse specialist should inform clients during their first session if they have been granted privileged communication. They should also clarify when privileged communication would not

apply, such as with child abuse and threats to harm others (Laben & MacLean, 1989).

Cases. In an Ohio case, Weis TI. Weis (1947), a will was contested by a stepson of the decedent. Nurses had been asked to testify about the decedent’s state of mind at the time the document was drawn. The contestees of the will asked that the nurse’s testimony be stricken because it was alleged that the information was privileged. The court ruled that nurses were not named in a privileged communication statute; therefore, communications to the nurse in the performance of her duties ”are not privileged unless the nurse is also a physician or surgeon” (Weis ZI. Weis, 1947).

In State v. Sweet (1982), the defendant was taken to an emergency room after a motorcycle accident. The nurse requested that the defendant sign a consent-to- treatment form. He responded that he was too drunk to do so, although he later signed the form. When he was convicted of drunk driving the issue was raised if the nurse’s testimony about his remarks could be admitted into evidence. Although the Vermont patient privilege statute includes nurses, the court ruled that the nurse was not performing nursing but a clerical function. Nurses might challenge the court’s interpretation of this function (Laben & MacLean, 1983; State v. Sweet, Vt., 1982).

~~~~~

A landmark case in California established

that it was a therapist’s duty to warn

endangered third parties if a patient

intended to harm them.

In Myers v. State (19841, a woman took an overdose of medication at the time of killing her victim. When she was taken to the hospital and was admitted to a psychiatric unit she was asked by the nurse, “How do you feel about being on the unit?” She responded, “I

Perspectives in Psychiatric Care Vol. 26, No. 4,1990 27

Privileged Communication: Psychiatric/Mental Health Nurses and the Law

have failed and I will have to face the music.” An objection was raised at the time of the trial to the admissibility of this statement. Georgia has no privileged communication for nurses, so the information was allowed into evidence.

Because nurses conducting psychotherapy

have not been granted privileged

communication by law in all states, it is

imperative that nurses become aware and

notify their clients of the laws under

which they practice.

In a recent case a defendant was charged with sexually abusing his stepdaughter. As part of a presentencing report a seven-page paper written by the defendant was introduced. The contents, which were written at the therapist’s request, included the defendant’s fantasies about a sexual relationship with his stepdaughter. The defendant’s lawyer did not object to the introduction of this evidence. The appeals court in Illinois ruled that the defendant had not received effective assistance because his counsel had failed to protect ”his client’s therapist-patient privilege” (Social Worker Privilege, 1989, p. 239).

In another case a defendant went to a mental health clinic and saw a social worker. The social worker assured the defendant that the information he communicated would be confidential. The defendant confessed to sexually abusing his nine-year-old daughter. His confession was reported to the authorities, as required, and the defendant was arrested. Before the trial began the state sought to have the defendant’s statements to the social worker

about his daughter admitted into evidence. The defense attorney objected. The court ruled that these statements could not be introduced because the information was meant to be confidential. Because the social worker was required by law to report the statement did not mean that there was a waiver of privileged communication. There was no indication that the defendant communicated that he intended to continue the sexual molestation. Therefore, his disclosure did not fall under duty to warn for a potential future criminal act (New York v. Bass, 1988).

Arguments Against Privileged Communication

Recently, Tennessee nurses attempted to introduce a statute of privileged communication for nurses. Apparently, anxiety about the AIDS problem had made legislators reluctant to grant professional groups privileged communication. The bill was withdrawn without being passed. The argument against this statute was that reporting is essential in certain kinds of situations. However, this has not precluded some states (e.g., New York) from passing mandatory reporting laws for abuse, while still creating statutes that guarantee privileged communication for health professionals.

Another argument against passage of such laws is that it diminishes the authority of the courts to seek information and to establish the truth. In Illinois, a therapist can refuse to divulge information even if the client waives the privilege. Some consider this law to give the therapist too much power (Laben & MacLean, 1983).

Conclusion

Because nurses conducting psychotherapy have not been granted privileged communication by law in all states, it is imperative that nurses become aware and notify their clients of the laws under which they practice. Clients expect confidentiality from all psychotherapists, but may not realize that

28 Perspectives in Psychiatric Care Vol. 26, No. 4,1990

confidentiality and privilege are not synonymous. The education and expertise acquired by clinical nurse specialists cannot be fully utilized without privileged communication. With privilege, clinical nurse specialists can extend the services provided to a small minority of those in need of therapy.

References

Knapp, S., & VandeCreek, L. (1987). Privileged communication in the mental health professions. New York Von Nostrand Reinhold.

Laben, J., & MacLean, C. (1983). Legal issues and guidelines for nurses w110 care for the mentally ill. Owings Mills, MD: National Health Publishing.

Myers v. State, 251 Ga. 883,310 S.E. 2d 504 (1984).

New York v. Bass, 529 N.Y.S. 2d 961 (1988).

Peck v. the Counseling Center of Addison County, 449 A. 2d 442 (Vt. 1985). at 422.

Peterson v. State, 671 P. 2d 230 (Wash. 1983).

Social worker privilege. (1989). Mental and Physical Disability Law Reporter, 23(2), 131.

State v. Andring, 342 N. W. 2d 128 (Minn. 1984).

State v. Sweet, 149 Vt. 238,453 A. 2d 1131 (1982).

Tarasoff v. Regents of the University of California, 529 P. 2d 553 (Cal. 1984). and 551 P. 2d 334 (CaI. 1976) at 347.

Weis v. Weis et al., cite as 72N. E. 2d 245 (Ohio, 1947).

Menninger @J Twelfth Annual Clinical Sessions in Psychiatric Nursing March 27-29,1991 Topeka, Kansas

The conference will offer sessions that empha- size professional and personal development of the mental health nurse. Topics to be discussed:

0 Empathy 0 Staff issues 0 Case management 0 Assessment Psychoeducation 0 Humor 0 Transference 0 Occultism 0 Milieu management 0 Ethics

Tuition: $200 for first registration; $185 for each additional from the same agency.

CEU's: 14 contact hours

Contact: J ape Roberts, Conference Coordi- nator, Division of Continuing Education, The Menninger Clinic, Dept. ALDA, Box 829, Topeka, KS, 66601-0829,800 288 7377.

0 Nursing diagnosis

Perspectives in Psychiatric Care Vol. 26, No. 4,1990 29