It has become common knowledge among many casual observers of the American legal system that certain communications uttered in confidence to designated individuals have become legally protected from public disclosure. The reasons for such enunciated legal principals recognized in various forms within all states is to preserve the confidence of citizens in their ability to seek the sanctity of trusted dialogue with members of society deemed necessary to facilitate such discussion.
Underscoring such legal principals are designated testimonial “privileges,” protecting against public disclosure communication uttered to those with the personal or professional standing to enforce such a privilege.
Attorney client privileges are in effect to further the cause of effective legal representation within criminal or civil case proceedings. Without such a privilege the foundation of the American justice system would erode. Litigants within legal proceedings would not be in position to trust their designated legal representative’s ability to preserve confidential communication. Without such trust a lawyer would be hampered in furthering potential legal action that could otherwise benefit a citizen in need.
Clergy are protected from legal sanction for refusing to disclose communication uttered in confidence. In so doing, society wishes to encourage the needed therapeutic benefit of trusted communication between a religious representative and one seeking needed guidance.
Spousal immunity exists to preserve the sanctity of the marital relationship and to prevent the potential destruction of this legally sanctioned relationship. Toward this goal, legal guidelines have developed that would prevent the justice system from contributing to pitting one spouse against another within a court of law.
The above referenced privileges non withstanding, within the context of certain criminal and civil proceedings exceptions exist to pierce such immunity. In such circumstances public testimony could be compelled or sanctioned no matter the individual recipient of the communication.
For as long as such immunity has existed, individual states have wrestled with the question of when the interests of justice in the disclosure of information thought to be disclosed in confidence may override the preservation of the presumed protected legal relationship.
This balancing act has never been more significant than when assessing the parameters of the physician-patient relationship. As a defense attorney I must convey that it has been the failure to understand the limits of evidentiary immunity within this relationship that has lead to more unwarranted public disclosures of information than any other.
Although society has endorsed through legislative statutes the continued confidential legal protection of confidences disclosed to the above referenced individuals, such immunity has not been protected from public disclosure at all costs. Rather, a balancing act is perpetually conducted within the appellate courts of all states as to how to preserve the recognized relationships we hold dear within society while carving out exceptions within limited circumstances where the harm of non disclosure of privileged communication will conflict with the interests of justice.
How each state has broadened an allowance for the public disclosure of debated privileged communication has depended upon circumstance. Indiana’s prior precedent on this issue is one that has taken liberty to broaden public disclosure of privileged communication more than any other. Such a recognition is significant for it has legal ramifications to both criminal and civil proceedings and can often dictate the course of therapeutic treatment one in need of counseling will be willing to submit to.
All states have agreed that the above reference verbal immunity will not apply in circumstances where patient or parishioner discloses the intent to commit a crime in the future. In fact, most all state legislative statutes not only acknowledge for the ability to waive a verbal privilege in such a circumstance, but require for the disclosure of such information to law enforcement authorities or be subject to criminal prosecution. (IC-31-32-11-1)
Of course the scope and circumstances of what testimonial evidence will become admissible within a court proceeding will be subject to the rules of evidence within a given state. For example, many a case has been litigated as to whether such utterances of a patient were thought to be fantasy and not subject to professional public disclosure or those that could subject a professional to criminal prosecution under a reasonable man standard.
However, where criminal prosecution looms against health care providers to whom immunity has selectively been granted, professional interest will almost always prevail. When in doubt as to potential criminal prosecution for non disclosure of information the zeal to protect a professional immunity often tends to erode in favor of career self preservation for most medical providers.
It is often a legal obligation of a therapist to reveal confidentially disclosed information. For example, it is no longer a question as to whether a therapist may be forced to reveal the future commission of a crime committed by a patient, but in what circumstances.
In some state jurisdictions prior acts of potential criminal conduct are not subject to disclosure. In others, the distinction between past and future conduct is not as clearly delineated. Irrespective of these variances among states, all states have recognized the need for public disclosure of normally trusted communication within the context of protecting society from the reasonably foreseen future criminal harm of a given patient.
Where Indiana has separated itself from the conventional precedent of most states has been its willingness to allow for communication of mental health counseling to inject itself into civil case proceedings. This allowance have been the centerpiece of national legal discussion within the context of child custody proceedings. In such cases, Indiana jurists have previously endorsed the proposition that when the best interests of a child are at stake, “relevant” information gleaned from the prior mental health counseling of one of the parents will potentially be considered admissible evidence within child custody proceedings.
Other states have been more inclined to restrict the disclosure of such treatment so as to encourage the public interest of allowing for the confidential treatment of individuals who otherwise would not seek such assistance. Despite such notions, Indiana case precedent has conversely held steadfast to the proposition that despite conventional recognition of the non disclosure of such treatment, a child’s best interests within child custody litigation may require the disclosure of such information that may be deemed privileged in other state jurisdictions. Owen v. Owen, 563 N.E. 2d 605 (Ind. 1990)
In my role as a legal advocate, it is often a responsible practice to recommend pre trial counseling in specific case circumstances that can both aid in voiding the prospect of future criminal sanction as well as to preserve the long term well being of a given individual.
The implications of Indiana’s prior precedent and willingness to erode the confidentiality of such potential pre trial mental health treatment is unsettling to attorneys who must often recommend both a proper course of legal as well as counseling treatment for clients in their care.
It has been my experience that not enough attention has been paid to this potential legal trap awaiting patients seeking treatment within a pending criminal prosecution. Based upon prior legal pronouncements within Indiana, the specific nature of mental health counseling undertaken during the course of a criminal prosecution is one that should be given great consideration and in consultation with your attorney. To proceed otherwise could unfortunately lead to the introduction of adverse evidence within a child custody proceeding or other legal forum due to a mistaken understanding as to the concept of verbal immunity within Indiana and beyond.
