Like quite a lot of legal concepts, the idea of confidentiality in a psychotherapeutic environment can easily be set aside.
This article addresses a patient that might perpetrate some violence and a therapist's 'duty' to report, or not report it. This discussion makes the idea of doctor-patient confidentiality seem fairly sacrosanct and protected from the intrusion of evidentiary discovery.
In reality, litigants subponea their opponents private records all the time and courts very often allow these violations of doctor-patient privilege. A local trial judge, sitting on his perch of power of people's lives and with very little scrutiny of his mistakes, can insist that a person's psychotherapy records be turned over for pretty much any reason the judge wants to come up with. Most of the time, I don't think judges need much reason at all. If one party to some litigation puts another party's mental fitness into the litigation mix as some kind of 'issue' related to the matters at hand, most judges say 'hey, maybe there is something relevant in the shrink files, how can we know if we don't look?"
In the early eighties, I sought the help of a psychologist so overcome a bout of clinical depression. I receive fairly routine treatment. I talked about my deep depression, my shrink made notes, I talked some more.
Then my husband, who was pretty much the root of my clinical depression, subponea'd my shrink records in an attempt to prove I was an unfit mother.
It was truly awful, astoundingly awful, to be threatened with the loss of custody of my child. But, man, I can tell you, when the judge ordered my therapist to turn over his clinical records of my treatment to my ex-husband, it felt like I had been gang-raped. My husband could read my shrink files, my lawyer had to read them because everyone else was reading them, my husband's lawyer read them, law clerks read them, the judge read them. And my husband made photocopies of my therapist's notes about me and gave them to some of our friends. Pretty much everyone we knew in those days were other lawyers. It felt like my private shrink file had been published in the local paper. Anyone who wanted to read them could have. . . my ex would have loved to rape me by giving them to people who might know me.
My real friends refused to read them. And guess what? My ex had forgotten some key details. He had overlooked the fact that he and I had started out seeing the same psychologist for marriage counseling. My ex had not considered that my therapist's file on me, um, included his notes on my husband. My ex had completely failed to consider that the therapist's notes on him would also be submitted into the court record because it was all in the same file.
And there was one other thing my idiot ex overlooked: if my therapist was allowed to testify about my confidential interactions with him, guess what, the therapist was also allowed to testisfy about my ex. In the end, it turned out to be very useful to have a psychologist who believed, along with me, that my ex was a whack job and that my situational depression was almost entirely the result of living with said whack job. My ex sputtered indignation for years afterwards, furious that I had vioalted his right to privacy with his shrink.
In the end, no one was well served by this breach of confidentiality. It deeply violated all of us and affected the longterm best interests of our child because she had to deal with this violation and how it affected her parents, deeply, and over many years.
I know I am sharing a lot of personal detail . . . but it always disturbs me when I read something like this Explainer piece. It gives people the false illusion that there is such a thing a confidentiality in the legal system. There is not. Any judge can, on a whim, say 'the facts of this case require that we take a look at this file' and presto, the judge has that power. And it would cost a ton of money to try and fight the judge's decision and few people in litigation have many thousands of extra dollars to spend on legal fees to correct a judge's misapplication of the law.
Judges can do whatever they want and the burden to correct their mistakes is expensive and high.
There is no real confidentiality. If someone wants to get your records and they issue a subponea, the chances are very, very high that your privacy will evaporate.
still, it probably is good that people have the ILLUSION that their doctor-patient conversations are privileged. It probably does help facilitate healing. But it is an illusion.
