Every now and then a confusing knot of rules gets streamlined and untangled. That recently occurred in New Jersey, when the state’s Supreme Court adopted a new unified Mental Health Service Provider – Patient Privilege, to replace the state’s existing patchwork of privileges which offer varying, and sometimes inconsistent, degrees of protection to communications between mental healthcare professionals and their patients. The new privilege, codified as NJ Evidence Rule 534 (“Rule”) will go into effect on July 16, 2016. The Rule applies to legal proceedings in New Jersey state courts and addresses when communications between patients and covered providers may be withheld from disclosure and when disclosure may be required. As a general matter, the Rule provides broad protection for the confidentiality of covered communications. New Jersey licensed healthcare professionals and their employers may wish to take note.
The new Rule applies to confidential communications between a patient and a “mental-health service provider,” specifically including, though not limited to (1) psychologists, (2) psychiatrists and other physicians, (3) marriage and family therapists, (4) social workers (including social work interns and certified school social workers), (5) alcohol and drug counselors, (6) nurses, (7) professional counselors, associate counselors or rehabilitation counselors, (8) psychoanalysts, (9) midwives, (10) physician assistants and (11) pharmacists.
Confidential information protected from disclosure under the Rule, is not limited to information that relates solely to the patient’s condition or treatment. Rather, the privilege extends broadly to:
Such information transmitted between a mental-health service provider and patient in the course of treatment of, or related to, that individual’s condition of mental or emotional health, including information obtained by an examination of the patient, that is transmitted in confidence, and is not intended to be disclosed to third persons, other than
(i) those present to further the interest of the patient in the diagnosis or treatment;
(ii) those reasonably necessary for the transmission of the information, including the entity through which the mental-health service provider practices; and
(iii) persons who are participating in the diagnosis or treatment of the patient under the direction of a mental-health service provider, including authorized members of the patient’s family, the patient’s guardian, the patient’s conservator, and/or the patient’s personal representative.
The Rule requires mental health service providers to assert the privilege unless otherwise instructed by the patient, or as applicable, members of the patient’s family, the patient’s guardian or conservator, or the personal representative of a deceased patient.
The Rule includes more than a dozen exceptions based on existing exceptions to the privilege rules, including for example, communications relevant to a court-ordered physical, mental or emotional examination of the patient civil commitment, fitness to stand trial, and validity of a will. New to New Jersey’s evidence rules, the Rule contains an express exclusion for communications relevant to firearm applications, permits and identification cards.
The Mental Health Service Provider – Patient Privilege is a rule of evidence, and as such, does not carry direct penalties for breach of confidentiality. No doubt, however, it will create a standard with which covered mental health services providers will be expected to comply and which if breached could lead to repercussions, such as workplace discipline, state licensure actions, and potentially, civil action alleging breach of privacy.
Privilege and evidence rules vary from state to state. Healthcare employers and professionals should stay up to date on the standards that apply in their states. As New Jersey’s new rule demonstrates, the rules can and sometimes do change.