Social Worker Privilege
• According to Indiana statute, licensed social workers, clinical social workers, certified marriage and family therapists, and mental health counselors (referred to collectively as “counselors”) are covered under the physician-patient privilege.
• All agree that a psychotherapist privilege covers confidential communications made to licensed psychiatrists and psychologists. We have no hesitation in concluding in this case that the federal privilege should also extend to confidential communications made to licensed social workers in the course of psychotherapy.
• The purpose of Section 25–23.6–6–1 is to grant a privilege to protect confidential communication between a counselor and the counselor's client. By enacting Section 25–23.6–6–1, the legislature extended to counselors the same privilege that exists for physicians. The counselor/client privilege is in derogation of common law, so it must be strictly construed.
• Generally, to determine whether communications are covered by the privilege, the court will conduct an in-camera review of the purportedly privileged material. The State does not have a right to review documents to determine if the privilege applies.
• In essence we entrust trial courts rather than sparring litigants with the authority to preserve the inviolability of privileged information. And although the trial court may have allowed the State to review the requested documents in this case under a confidential protective order, it was not compelled to do so.
• [However,] “some discovery” is permissible in order to make the determination whether a witness may have information not subject to a privilege.
Confidentiality and Official Capacity
• We do not doubt that Kavanaugh expected confidentiality when he made his admission, but evidentiary privileges are not created based upon a person's expectation of privacy.
• The privilege applies only to communications between a client and a counselor acting in his or her official capacity, and though labeling a meeting between a client and a counselor as ‘non-therapy’ does not in and of itself render communications at the meeting non-privileged, to the extent that such a meeting is conducted for non-therapeutic reasons, it is outside the scope of a normal therapist-client relationship, and not subject to the privilege.
• Application of victim advocate privilege to bar defendant’s access to records regarding his alleged victims that were kept by crisis counseling service did not violate defendant’s rights to cross-examination of witnesses under the Confrontation Clause.
• Indiana’s victim advocate privilege applies to victim service providers that provide services for emotional and psychological conditions to victims of domestic violence and sexual assault.
• The victim does not waive this privilege by testifying about a crime.
• Defendant's admission to his attorney, made in his family therapist's office in the presence of therapist and defendant's wife, was not protected by the therapist-client privilege, even if therapist breached his duty of confidentiality by informing attorney that defendant had made admission in therapy sessions, where admission was made in response to attorney's question and meeting at which admission was made was to inform defendant he was subject to criminal prosecution, not for purpose of family therapy.
• The only times that a counselor may divulge patient information and communications are:
(1) In a criminal proceeding involving a homicide if the disclosure relates directly to the fact or immediate circumstances of the homicide;
(2) If the communication reveals the contemplation or commission of a crime or a serious harmful act;
(3) If the client is an unemancipated minor or an adult adjudicated to be incompetent OR the information communicated to the counselor indicates the client was a victim of abuse or other crime;
IC 31-32-11-1(3) (All social worker and counselor privileges do not apply in matters relating to a report of a child who may be a victim of abuse or neglect, or the failure to so report.)
(4) In a proceeding to determine mental competency, or a proceeding in which the defense of mental competency is raised;
(5) In a malpractice suit against the counselor;
(6) If the counselor has the express consent of the client or the client’s legal representative;
(7) To a physician if the physician is licensed and has established a physician-patient relationship with the client; OR
(8) Circumstances under which privileged communication is abrogated under Indiana law.