Supreme Court Adopts: Unified Mental Health Service Provider Privilege

The New Jersey Supreme Court has adopted a rule that creates a “unified mental health service provider privilege,” which will reorganize the current patchwork of privileges which offer varying degrees of protection to professionals.

New Jersey Rule of Evidence 534 will go into effect on July 16, 2016, according to a notice to the bar issued by Chief Justice Stuart Rabner on Sept. 15.

The new rule is “intended to modify or replace the different and occasionally inconsistent privileges that currently exist for communications between patients and various mental health service providers,” the notice says.

“The privilege applies to confidential communications between a mental health service provider and a patient during the course of treatment of, or related to, the patient’s mental or emotional health,” the notice says.

The privilege will apply to psychologists, physicians and psychiatrists, marital and family therapists, social workers, alcohol and drug counselors, nurses, professional counselors, psychoanalysts, midwives, physician assistants and pharmacists.

Members of the clergy, who have their own privilege, are not included in the new rule.

The new rule is the product of a process that began in 2010, when the Supreme Court’s Privileges Subcommittee issued a report finding “little apparent justification for treating a patient’s communications with one mental health professional differently from communications with a different mental health professional.”

The panel deemed the “disparate treatment” of different types of professionals “difficult to justify” given the policy goals of encouraging utilization of mental health services and ensuring the patients’ privacy.

Those goals “would seem to apply equally to a communication with a mental health service provider, regardless of his or her professional credentials,” the panel said. It noted that lesser protections for social workers and counselors, as opposed to psychologists and psychiatrists, is likely to adversely impact lower-income patients.

The current scheme also presents challenges to the courts, who must discern one privilege from another, even in situations where a patient has received treatment from multiple providers, such as in a hospital, the panel said.