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The Psychotherapist-Patient Privilege in Florida

In Florida, criminal defendants may be able to exclude damaging evidence from being introduced on the basis of an evidentiary privilege.  One privilege that often applies to Florida criminal defendants is the psychotherapist-patient privilege.

An evidentiary privilege generally applies to a relationship which is deemed worthy of being protected, pursuant to Florida law — in other words, the confidentiality of the particular type of protected relationship is deemed critical to society.  There is an attorney-client privilege, for example, and a clergy-penitent privilege.

The very nature of these relationships demand confidentiality.  Without legal assurances of such confidentiality, it would be difficult for an attorney to get their client to provide the full facts of their case, or for a member of the clergy to convince the members of their community to unburden themselves.

Similarly, the nature of the psychotherapist relationship relies on the confidentiality of communications between the patient and the treating psychotherapist.  Psychological issues are intensely private for many individuals, and treatment might not be sought out if sensitive patients were uncertain about the confidentiality of the relationship.

So, how does the psychotherapist-patient privilege work in Florida?  Let’s take a quick look.

The Basics

The psychotherapist-patient privilege belongs to the patient, but may be claimed on the patient’s behalf by their attorney, guardian, conservator, personal representative, and psychotherapist (who is assumed to claim the privilege on behalf of their patient unless there is evidence to the contrary).  If you are a criminal defendant and the State prosecutors attempt to introduce evidence of anxiety issues discussed with your psychotherapist, you may claim the privilege and bar the introduction of such evidence.

In Florida, the psychotherapist-patient privilege broadly applies to criminal cases unless the defendant makes their mental state an issue (i.e., by claiming insanity) or otherwise waives the privilege.

Section 90.503 of the Florida Statutes provides ample clarity on the fundamental pre-requisites for application of the psychotherapist-patient privilege.

The Psychotherapist

The psychotherapist must be a person who is:

  • Authorized to practice medicine or who is reasonably believed to be authorized, and who is engaged in the diagnosis/treatment of the patient’s mental or emotional condition;
  • Licensed or certified as a psychologist, and who is primarily engaged in the diagnosis/treatment of the patient’s mental or emotional condition; or
  • Licensed or certified as a clinical social worker, marriage, family therapist, or mental health counselor pursuant to Florida law, and who is primarily engaged in the diagnosis/treatment of the patient’s mental or emotional condition.

Confidential Communication

Only confidential communications are protected by the psychotherapist-patient privilege.  Not all communications are confidential.  If there is a reasonable basis to believe that the communication with the psychotherapist is private (or is only disclosed to third-parties for the purpose of treatment/diagnosis/examination), then it’s fair to assume that the communication was confidential and comes under the privilege.

For example, suppose that you meet your psychotherapist in a casual setting outside of the psychotherapist’s office — perhaps in a busy cafe.  You loudly tell the psychotherapist about your mental condition and the various emotional difficulties you’re going through.  Nearby people at the cafe can hear what you’re saying.  The communications you make at the cafe are not likely to be privileged, as they were not private and confidential.

If you’ve been charged with a crime, or if you’re currently under criminal investigation, call 941-404-8919 as soon as possible to speak with experienced Bradenton criminal defense attorneys at the Fowler Law Group today.  Our attorneys will work hard to ensure that your private and confidential communications with your psychotherapist(s) are not introduced as evidence in your case, and that you do not waive your privilege unless it is strategically worthwhile to do so.

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