Unified Privilege for Mental Health Professionals Adopted
Michael Booth, New Jersey Law Journal
September 18, 2015
The New Jersey Supreme Court has adopted a rule that creates a "unified mental health service provider privilege," which will reorganize the current patchwork of privileges which offer varying degrees of protection to professionals.
New Jersey Rule of Evidence 534 will go into effect on July 16, 2016, according to a notice to the bar issued by Chief Justice Stuart Rabner on Sept. 15.
The new rule is "intended to modify or replace the different and occasionally inconsistent privileges that currently exist for communications between patients and various mental health service providers," the notice says.
"The privilege applies to confidential communications between a mental health service provider and a patient during the course of treatment of, or related to, the patient's mental or emotional health," the notice says.
The privilege will apply to psychologists, physicians and psychiatrists, marital and family therapists, social workers, alcohol and drug counselors, nurses, professional counselors, psychoanalysts, midwives, physician assistants and pharmacists.
Members of the clergy, who have their own privilege, are not included in the new rule.
The new rule is the product of a process that began in 2010, when the Supreme Court's Privileges Subcommittee issued a report finding "little apparent justification for treating a patient's communications with one mental health professional differently from communications with a different mental health professional."
New Jersey State Bar Association President Miles Winder III told the Judicial Conference on Sept. 2 that the bar was "strongly supportive" of the creation of the new rule.
"We view a unified privilege as an important step forward in clarifying and providing uniform standards for all providers," said Winder, who heads a firm in Bernardsville.
After the Privileges Subcommittee released its report, the Supreme Court authorized a comprehensive study, for which a special subcommittee, headed by Appellate Division Judge Mitchel Ostrer, was assembled.
The Ostrer panel, in a report released in April 2014, found that at present, the extent of the privilege "often depends on the license or professional credentials of the provider" and current evidence rules "provide for different and sometimes inconsistent privileges."
The privilege attached to communications with a psychologist, for instance, is stronger than for those to a social worker.
The panel deemed the "disparate treatment" of different types of professionals "difficult to justify" given the policy goals of encouraging utilization of mental health services and ensuring the patients' privacy.
Those goals "would seem to apply equally to a communication with a mental health service provider, regardless of his or her professional credentials," the panel said. It noted that lesser protections for social workers and counselors, as opposed to psychologists and psychiatrists, is likely to adversely impact lower-income patients.
The current scheme also presents challenges to the courts, who must discern one privilege from another, even in situations where a patient has received treatment from multiple providers, such as in a hospital, the panel said.
The panel declined to recommend greater protection to victim counselors and communications by victims to other professionals-urged by some because abuse and crime victims have a greater stake in privacy, namely safety, they argued.
There are 13 enumerated exceptions, including communications pertaining to civil commitment, fitness to stand trial, validity of a will, court-ordered examinations, cases in which the patient's condition is an element of a claim, and statutorily mandated reports, such as those documenting child abuse or neglect.
They're all based on existing exceptions except one that excludes communications related to a firearm identification card or permit.
Contact the reporter at
[email protected].
Hanan M. Isaacs, Esq.
t 609.683.7400 f 609.921.8982
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www.hananisaacs.com4499 Route 27, Kingston NJ
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