For the Defense - Vol. 4, Issue 3 - 7

form of psychotherapist privilege, the scope of the
privilege varies.4
Pennsylvania law protects confidential
communications to psychiatrists or licensed
psychologists "on the same basis as those provided or
prescribed by law between an attorney and client."5
Section 5944 of Title 42 is a bar to both testimony
and disclosure of records.6 However, only privileged
communications with psychiatrists and psychologists
are protected: the privilege does not apply to all
Pennsylvania-licensed mental-health professionals.7
If you are counseling a client about the extent of
any privilege, you should take care to highlight that,
for example, his or her communication with a social
worker or family counselor is not privileged under
Pennsylvania law.
New Jersey also recognizes a Psychologist Privilege
in the New Jersey Rules of Evidence (N.J.R.E.). The
rule, which is similar to Pennsylvania's statute and
protects communications on the same basis as those
between an attorney and client,8 applies to a broader
range of mental health service providers, including
marriage and family therapists, social workers,
counselors, physician assistants, and pharmacists.9
The New Jersey privilege allows a patient "to refuse
to disclose in a proceeding, and to prevent any other
person from disclosing confidential communications"
defined as "information transmitted between
a mental-health service provider and patient in
the course of treatment of or related to...that is
transmitted in confidence, and is not intended to
be disclosed to third parties."10 There are limited
exceptions, including if the client's competence is at
issue, if the information is "relevant to an issue in a
proceeding to recover damages on account of conduct
of the patient which constitutes a crime," or if the
mental health services were sought or obtained in aid
of the commission of a crime or fraud, subject to the
protections in New Jersey Rules of Evidence 501 and
509.11
You should understand whether the client
is currently in treatment-or wishes to be in
treatment-in order to evaluate whether you need
to counsel them about the scope of any privilege
and whether the information your client shares with
the provider might be discoverable in a criminal
proceeding. It is only with such counseling that the
client can make an informed choice and balance the
benefit of treatment with the risks of disclosure, and
possibly limit the facts provided to their mental health
provider. For example, a client may choose to disclose

physical symptoms, while not providing detail as
to the circumstances or source of their stress to the
extent it involves their legal affairs.
In evaluating the legal risks, an attorney should
also consider any issues of mental capacity and how
that might affect the client's legal affairs, both as
it relates to the immediate criminal engagement,
as well as the client's on-going affairs. For example,
New Jersey law provides that "no patient may be
presumed to be incompetent because he has been
examined or treated for mental illness, regardless
of whether such evaluation or treatment was
voluntarily or involuntarily received."12 Although
under New Jersey law, clients receiving in-patient
services may have certain activities restricted,
like telephone access, "under no circumstances
shall a patient's right to communicate with his
attorney, physician or the courts be restricted."13
By contrast, in Pennsylvania, "[w]henever a person
is severely mentally ill and in need of immediate
treatment, he may be made subject to involuntary
emergency examination and treatment. A person
is severely mentally disabled when, as a result
of mental illness, his capacity to exercise selfcontrol, judgment and discretion in the conduct
of his affairs and social relations or to care for his
own personal needs is so lessened that he poses a
clear and present danger of harm to others or to
himself."14
The Pennsylvania client has more at risk -
particularly if there is a concern that the client
may be subject to involuntary treatment, which
in Pennsylvania (but not New Jersey) carries with
it the implication, and potential presumption,
of incompetence to conduct his or her affairs.15
There is also the risk that a client who enters
treatment voluntarily, may subsequently be
retained involuntarily, and ultimately be deemed
incompetent to conduct his or her affairs despite
voluntarily entering treatment.16 For a client with
other business and legal interests over which they
would like to maintain control, entering treatment,
particularly in Pennsylvania, is not without risk.
One of the most significant risk factors for
death by suicide is having access to lethal means.
For half of completed suicides, the lethal means
is a firearm. Even though acts with firearms make
up only 5% of all deliberate self-harm acts, more
than 90% of acts with firearms are fatal, compared
with the fewer than 3% of fatal self-harm acts with
drugs or cutting, which make up more than 90% of
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For the Defense - Vol. 4, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 3
