Is the Therapist-Client confidentiality valid even after the passing away of the client? Also if not what repercussions could a Therapist face for revealing such details after the said person had passed away?
2 Answers
I don't have access to case law from India, but this is an area upon which common law countries including India should be similar.
The attorney-client privilege survives death. See, e.g., Wesp v. Everson, 33 P.3d 191 (Colo. 2001). The therapist-client privilege is modeled on the attorney-client privilege but is not identical.
Although New Hampshire's therapist-client privilege statute is modeled on the attorney-client privilege, there are separate and distinct policy considerations underpinning the therapist-client privilege. The New Jersey Supreme Court highlighted these differences in analyzing its own psychologist-patient privilege statute, also modeled on the attorney-client privilege.
"[T]he public policy behind the psychologist-patient privilege is in some respects even more compelling.... The psychologist-patient privilege ... serves to protect an individual's privacy interest in communications that will frequently be even more personal, potentially embarrassing, and more often readily misconstrued than those between attorney and client. Made public and taken out of context, the disclosure of notes from therapy sessions could have devastating personal consequences for the patient and his or her family.... Especially in the context of matrimonial litigation, the value of the therapist-patient relationship and of the patient's privacy is intertwined with one of the most important concerns of the courts—the safety and well-being of the children and families."
Kinsella v. Kinsella, 150 N.J. 276, 696 A.2d 556, 584 (1997).
Indeed, the public policy behind the therapist-client privilege may be even more compelling than that behind the usual physician-patient privilege. Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.
Jaffee v. Redmond, 518 U.S. 1, 10, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). “Many physical ailments might be treated with some degree of effectiveness by a doctor whom the patient did not trust, but a psychiatrist must have his patient's confidence or he cannot help him.” In re Brenda H., 119 N.H. 382, 386, 402 A.2d 169 (1979) (quotation *665 omitted), superseded on other grounds as recognized by In re Tracy M., 137 N.H. 119, 123–24, 624 A.2d 963 (1993).
By fostering productive relationships between therapists and their clients, the therapist-client privilege “[advances] the public good accomplished when individuals are able to seek effective mental health counseling and treatment.” Kinsella, 696 A.2d at 566. There is a serious risk that permitting parents unconditional access to the therapy records of their children would have a chilling effect on the therapist-client relationship, thus denying the children access to productive and effective therapeutic treatment. “[T]he mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.... [It is] difficult if not impossible for [a psychotherapist] to function without being able to assure ... patients of confidentiality and, indeed, privileged communication.” Jaffee, 518 U.S. at 10, 116 S.Ct. 1923 (quotation omitted).
The weight of authority in other jurisdictions supports protection for the therapy records of children who are at the **987 center of a custody dispute or whose interests may be in conflict with those of their natural guardians. See, e.g., Attorney ad Litem v. Parents of D.K., 780 So.2d 301 (Fla.Dist.Ct.App.2001) (seventeen-year-old child could assert privilege over her parents' joint waiver in child custody dispute); Bond v. Bond, 887 S.W.2d 558, 560–61 (Ky.Ct.App.1994) (in child custody dispute, neither parent may assert the privilege on the child's behalf, and the court may interview the therapist or appoint a guardian ad litem for the sole purpose of recommending whether and to what extent the privilege should be waived); Nagle v. Hooks, 296 Md. 123, 460 A.2d 49 (1983) (parents involved in a custody dispute cannot agree or refuse to waive the privilege on a minor child's behalf, and the court must appoint a guardian to act, guided by the best interests of the child); cf. In re Daniel C.H., 220 Cal.App.3d 814, 269 Cal.Rptr. 624, 629–33 (1990) (in dependency proceeding, where parent was accused of molesting his minor child, policy considerations regarding parental conflict of interest and potential harm to the child as a result of disclosure prevented parent from waiving the privilege on behalf of the minor child); S.C. v. Guardian ad Litem, 845 So.2d 953, 956–60 (Fla.Dist.Ct.App.2003) (in dependency proceeding, minor child could assert the privilege against guardian ad litem); In re Adoption of Diane, 400 Mass. 196, 508 N.E.2d 837, 840 (1987) (in adoption proceeding, where the parent and child had potentially conflicting interests and there was uncertainty concerning the parent's ability to further the child's best interests, parent was not allowed to exercise the privilege on the child's behalf, although a neutral guardian could assert or waive it); In re M.P.S., 342 S.W.2d 277, 283 (Mo.Ct.App.1961) (in neglect proceeding, accused parent could not claim child's *666 physician-patient privilege to prevent child's doctor from testifying regarding child's injuries).
In re Berg, 886 A.2d 980, 986–87 (N.H. 2005).
Usually, the privilege would survive death, but it might be possible to waive by the appropriate person, in the interests of the client or their inferred wishes, for example, to prosecute someone for murdering the client.
answered Aug 6, 2020 at 19:02
There are ethical and legal considerations - but, as we know these are not the same thing.
The Indian Journal of Psychiatry discuss this specifically in relation to psychotherapy ethics - but this is not the law. See here:
Agreements about confidentiality continue after the client’s death unless there are overriding legal considerations.
There is also an excellent article exploring legal and ethical issues in Psychotherapy in India more broadly here.
With specific reference to India:
According to Mental Health Care Act 2017, Section 23 (1), “A person with mental illness shall have the right to confidentiality in respect of his mental health, mental healthcare, treatment and physical healthcare.” The law further adds that it is the duty of the health professionals (that includes registered psychologists) to keep all the information confidential that has been obtained during the treatment. The law also states in Section 24 (1) that photographs or any other information related to the patient cannot be released in media without the consent of the person with mental illness.
Furthermore - the Rehabilitation Council of India (who register psychotherapists and clinical psychologists), who follow (since around 2005) a very American code of conduct regarding ethics on confidentiality - can be found here. This discusses client death.
Not specific to India or Therapists - but a key piece of guidance for us doctors can be summarised here (UK). In short - our duty of confidentiality continues after a patient dies. There is NO clear legislation on this - and it has been challenged a number of times. A key case is found here, from the UK.
However, we believe that the public interest in maintaining confidentiality in the medical records of a deceased outweighs, by some way, the countervailing public interest in disclosure.
Death and the act of breach of confidence is explored (from an old source, here)
Our conclusion is therefore that the personal representatives of a person to whom an obligation of confidence is owed but who has died before any breach of confidence has occurred should have a right of action for a subsequent breach of that confidence but only to the extent that such a benefit can pass to them under the general law governing the transmissibility of choses-in-action.
More recently - ICO (Information Commissioners Office) have said:
Where a legally enforceable duty of confidentiality is owed to a living individual, after death it can be enforced by the deceased’s personal representative.
Sanctions against a practitioner would be from their regulatory body, or a private law suit from an interested (lawful) party via the tort of breach of confidence. Breach of confidence gives rise to a civil claim where the estate of the deceased may be able to claim damages. How this would play out in court, is a different matter, given the fact that the person is dead. The Human Rights Act 1998 has developed the law on breach of confidence so that it now applies to private bodies as well as public ones.
Interestingly - you cannot defame the dead (Defamation Act 2013); so the family could not sue for defamation of someone who is deceased, for example. See here.
