Waiver of the psychotherapist-patient privilege: implications for child custody litigation

The psychotherapist-patient privilege, rooted in both common and statutory law, is predicated upon the public policy goal of protecting the reasonable expectation of privacy of individuals seeking psychotherapy. The privilege is not absolute, however. State and federal courts are far from uniform in determining how and when the privilege should be waived, in whole or in part, through implication, inadvertence or the affirmative action of the parties. In the family law context, the law that has evolved around the exercise of this privilege is even more complex as the needs of children add another wrinkle to the goal of balancing the imperative of confidentiality with the need for useful information that may be provided.     

The dangerous patient exception to the psychotherapist-patient privilege: the Tarasoff duty and the Jaffee footnote

With the U.S. Supreme Court's 1996 decision in Jaffee v. Redmond, all U.S. jurisdictions have now adopted some form of evidentiary privilege for confidential statements by patients to psychotherapists for the purpose of seeking treatment. The majority of states, following the decision of the Supreme Court of California in Tarasoff v. Regents of the University of California, have also adopted some form of duty by psychotherapists to breach confidentiality and warn potential victims against foreseeable violence by their patients. Largely unresolved is whether there should be a dangerous patient exception to the evidentiary privilege parallel to the Tarasoff exception to confidentiality. This Article argues that exception to the evidentiary privilege should be evaluated separately from the exception to confidentiality. Whether or not a Tarasoff duty to warn existed at an earlier time, exception to the evidentiary privilege should be made only where psychotherapists' testimony is necessary to prevent future harm to patients or identified potential victims. Applying this standard, the dangerous patient exception generally would not apply in criminal actions against patients, but would apply only in proceedings for the purpose of protecting patients or third parties, such as restraining order hearings or proceedings to hospitalize patients.     

The defence of therapeutic privilege in Australia

Therapeutic privilege is a defence that excuses a medical practitioner or other health professional from complying with the requirements of full disclosure to a patient in circumstances where it is reasonably considered that such disclosure would be harmful to that patient's health or welfare. Although the concept originated in the United States, the defence has been applied in Australia, and was specifically endorsed as part of Australian law by the High Court in Rogers v Whitaker (1992) 175 CLR 479. However, there has been negligible application of the defence since that endorsement. This article examines the doctrine of therapeutic privilege in the present Australian medico-legal environment. After an examination of the concept and its three constituetent elements, the article canvasses the limited instances of judicial approval of the defence prior to Rogers v Whitaker. The author then analyses, by reference to reported and unreported case law, why the defence has been so narrowly interpreted since, such that it has come to occupy an almost untenable position in Australia's medical jurisprudence.