And the Unified Mental Health Service Provider Privilege
Attention New Jersey mental health professionals: big changes are coming to the evidential privileges that govern your professional practice. Those changes take effect on July 1, 2016.
In a September 15, 2015 Notice to the Bar, New Jersey’s Supreme Court announced that it had adopted a new evidence rule: New Jersey Rule of Evidence 534 (“N.J.R.E. 534” or the “new rule”). The new rule creates a unified mental health service provider privilege in New Jersey.
Prior to the adoption of the new rule, the degree to which a patient’s communications with their mental health provider were privileged depended largely upon that professional’s licensure. For example, under the “old rule”, the privileges that attached to communications between a social worker and a client carried less weight than communications between a psychologist and a client.
The new rule changes this “hierarchy of privilege”. Broadly speaking, under the new rule the nature and extent of the evidential privilege that applies to patient communications with physicians, psychiatrists and psychologists will apply equally to patient communications with social workers, marriage and family therapists, professional counselors and other mental health professionals.
The new rule applies to “mental- health service providers” defined as someone “…authorized or reasonably believed by the patient to be authorized to engage in the diagnosis or treatment of a mental or emotional condition.” It lists eleven specific categories of such professionals: psychologists; physicians (including psychiatrists); marriage and family therapists; social workers (including social work interns and certified school social workers); alcohol and drug counselors; nurses; professional counselors, associate counselors and rehabilitation counselors; psychoanalysts; midwifes; physician assistants and pharmacists. Note that the proposed rule specifically excludes communications made between the listed mental health service providers and victims of violent crimes, as those communications are instead specifically governed by the “Victim Counselor Privilege” set forth in N.J.R.E. 517.
Practitioners need to understand the exceptions set forth in the new rule. There are eleven such exceptions. These include communications relating to fitness to stand trial, civil commitments, court-ordered examinations, statutorily mandated reports (e.g. regarding child abuse) and matters in which the patient’s condition is an element of the claim in question are not privileged under the new rule. In addition, subsection (g) makes clear that nothing in the new rule will prevent a Court from compelling disclosures where there has been either an explicit or implicit waiver of the privilege by the patient.
In my view, this rule change benefits patients. No longer does the confidentiality of the personal, often sensitive concerns they share with their mental health professional rise and fall based upon that professional’s mental health licensure. It is my view that this change also benefits many of New Jersey’s mental health professionals, such as social workers. Their communications with patients now enjoy the same robust level of protection as their colleagues licensed as physicians, psychologists, etc.
The foregoing is not intended as an exhaustive analysis of N.J.R.E. 534. It is not intended as specific legal advice and should not be relied upon as such. Mental health professionals seeking specific legal advice regarding the applicability of N.J.R.E. 534 to their practice are invited to call me at 732-226-7157.
