Topic:
MENTAL HEALTH; PSYCHOLOGISTS; CONFIDENTIALITY OF INFORMATION; PROBATION;
Location:
PRIVILEGED COMMUNICATIONS; PROBATION;

OLR Research Report


January 10, 2005

 

2005-R-0021

PROBATIONER-THERAPIST CONFIDENTIALITY

By: George Coppolo, Chief Attorney

You asked whether a therapist may reveal information he learns in a court-ordered group therapy session involving people on probation? Our office is not authorized to give legal opinions and this report should not be considered one.

SUMMARY

According to Judge Susan Handy, chief administrative judge of the Superior Court's Criminal Division, and Mike Hines, a regional manager for the Judicial Department's Court Support Services Division, people sentenced to probation involving court-ordered therapy are required to sign a form authorizing the therapist to disclose information revealed in therapy to a probation officer. (We have enclosed a copy of the form (JD-CL-48 Rev. 7-2000)). Hines advised us that a probation officer explains to the probationer before he signs it that it authorizes the therapist to disclose information he learns in therapy.

Normally, a therapist may not disclose any communication made by a patient, unless the patient waives his right to confidentiality. But the law contains various exceptions to this rule. One exception is in connection with a psychological examination ordered by the court if the patient was warned that his communications are not confidential. Another is when the therapist determines there is a substantial risk of imminent harm to someone else or a good faith suspicion of child abuse.

SENTENCE OF PROBATION

The court may sentence a person to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) present or extended institutional confinement is not necessary for the protection of the public; (2) the defendant is in need of guidance, training, or assistance, which can be effectively administered through probation supervision; and (3) probation is not inconsistent with the ends of justice (CGS 53a-29). When imposing a sentence of probation, the court may, as a condition of the sentence, order that the defendant comply with certain conditions such as undergoing psychiatric treatment, or satisfying any other conditions reasonably related to his rehabilitation (CGS 29-30(a)).

When a defendant has been sentenced to a period of probation, the Court Support Services Division may require that the defendant comply with any or all conditions that the court could have imposed that are not inconsistent with any condition the court imposed (CGS 53a-30(b)).

PRIVILEGED COMMUNICATIONS

The law makes communications with certain health care professionals confidential with certain exceptions. People are free to waive this privilege. Following, in table form, is a summary of our law relating to such communications.

Table 1: Privileged Communication

Privilege Holder

Type of Communication

When Statute Permits Unconsented Disclosure

Psychologists (CGS 52-146c)

All oral and written communications and records relating to the diagnosis and treatment of a person between such person and the psychologist or between the psychologist and the patient's family members.

1. when made in court-ordered examination, if person has been told communications are not confidential and person's mental state is at issue;

2. in civil proceeding, where person introduces his psychological condition as an element of the case, or after death, when someone brings a case on his behalf (a court must find interests of justice more important than protecting the relationship between the person and psychologist);

3. when psychologist believes that there is risk of imminent personal injury to the person or to other people or their property;

4. when psychologist has good faith suspicion of child abuse or abuse of an elderly, disabled, or incompetent person;

5. in collection matters (limited disclosure); or

6. to a homicide victim's immediate family, when (a) patient has been found not guilty by reason of insanity after July 1, 1989, (b) they ask for this information within six years, and (c) used in civil suit about the death

Physicians

(CGS 52-146o)

Communications made by, or information obtained from, a patient or his conservator or guardian about any actual or supposed physical or mental disease or disorder or information obtained by examining the patient.

1. pursuant to any statute or regulation or court rule;

2. to an attorney or malpractice insurer when a legal claim is pending or may be filed and the information is used in the doctor's defense;

3. to DPH when it is investigating a complaint against the doctor; or

4. when the doctor has a good faith suspicion of child abuse or abuse of an elderly, disabled, mentally retarded, or incompetent person

Psychiatrists (CGS 52146d; also covered by CGS 52-146o, above)

All oral and written communications and records relating to diagnosis or treatment of a patient's mental condition between the psychiatrist and patient, psychiatrist and patient's family, or between them and a person participating under the supervision of a psychiatrist in accomplishing the objectives of diagnosis and treatment, including a mental health facility's records.

1. to other people treating or diagnosing the patient when the doctor deems it necessary and tells the patient;

2. when the doctor determines there is substantial risk of imminent physical injury to the patient or others or needs to disclose to hospitalize or commit the patient;

3. in collection matters (limited information);

4. when examination has been ordered by a court or in connection with a conservatorship application and (a) the patient is a party or his mental competence is at issue, (b) he has been informed that disclosure may occur, and (c) disclosure is limited to issues involving his mental condition;

5. in lawsuits when the patient introduces his mental condition as an element of the case and the court finds it more important to the interests of justice that the communications be disclosed than that the relationship be protected;

6. to the public health or mental health and addiction services commissioner in connection with facility inspections, investigations or examinations authorized by law;

7. to immediate family members or legal representatives of homicide victims, under same circumstances as psychologists;

8. to the Department of Mental Health and Addiction Services (DMHAS) in connection with a behavioral health service contractor's payment claim (limited information) or services provided to DMHAS clients; or

9. to researchers in some circumstances.

Social workers (CGS 52-146q)

Oral and written communications and records relating to the evaluation and treatment of a person between the person or a family member and a social worker or someone acting under the social worker's supervision.

1. to other treaters;

2. when there is a substantial risk of imminent physical injury to the person or someone else, or when disclosure is otherwise mandated by statute;

3. in court-ordered evaluations, when court finds need for justice outweighs protecting confidentiality;

4. in lawsuits when the client introduces his mental condition as an element of his claim or defense; and

5. in collection matters (limited information)

Professional counselors (CGS 52-146e)

Oral and written communications and records relating to diagnosis and treatment between the person or family members and a counselor.

1. in court-ordered mental health assessments, when judge finds that the person has been told that communications are not confidential, and only on issue of the person's mental condition;

2. in lawsuits, where the person has introduced his mental condition as an element of his claim or defense;

3. where mandated by other statutes;

4. where counselor has good faith belief that failure to disclose presents a clear and present danger to a person's health or safety or there is risk of imminent personal injury to a person or property;

5. where counselor has good faith suspicion of child abuse or abuse of an elderly, disabled, or incompetent person; or

6. in collection matters (limited information).

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