in Mental Health and Deafness
Privilege, which belongs to and can be waived by the client, varies from state to state. It is a begrudging judicial waiver of the requirement for the therapist to testify or produce records in court proceedings because it is thought to be in the interests of society to protect certain key relationships. The courts reason that preserving confidentiality in certain key relationships (spouses, attorney–client, doctor–patient, news reporter–source, clergy–confessor, therapist–client) serves a greater problem-solving good in society than does subpoenaing therapist testimony and records in a particular case.
But there have been significant recent judicial assaults on the therapist–client privilege. One such close call was the U.S. Supreme Court decision Jaffee v. Redmond et al (1996). The case involved a white policewoman who sought counseling from a licensed social worker after the policewoman killed a fleeing African American suspect. The family of the deceased suspect challenged the psychotherapist–patient privilege, demanding the social worker’s case notes about her work with the policewoman after the shooting. The family hoped to find case note evidence of the policewoman’s racist motives. The social worker refused to turn over her case notes.
Like all cases that get to the U.S. Supreme Court, this case involved the relative merit of two legitimate views. Here the question was whether the psychotherapist–patient privilege outweighed a family’s right to know if their son was killed by a racist. The psychotherapist–patient privilege won out in this case, but a strongly worded dissent by Justices Scalia and Rehnquist may prevail in future therapist–client privilege cases. Privilege aside, this case shows that the law and professional ethics can collide. Would you have refused to turn over therapy notes, even incriminating notes about a racist police officer/client, risking jail for contempt of court?
Returning to fundamental ethical principles, the principle of justice means that our professions are committed to the fair distribution of therapeutic services, to deaf children, their parents and families, deaf senior citizens, straight and gay deaf people, deaf prisoners, people who are deaf and blind, deaf people with cochlear implants, rich and poor deaf people, signing and non-signing deaf people, and deaf people of every color and culture. Few communities in the United States have had less justice in the fair distribution of therapeutic services than deaf people (McCrone, 1994).
The emergence of specialists in counseling and therapy with deaf people was the product of (a) Deaf community frustration with harm caused by unqualified, generic therapists working with deaf people; and (b) the neglect of the therapeutic professions regarding the principle of justice (McCrone & Beach, 1994).
UNDERSTANDING THE ETHICAL PRINCIPLES AND THE CODE OF ETHICS IN NEGLIGENCE/MALPRACTICE LAWSUITS
It is essential that therapists working with deaf people know that the ethical code and its foundational principles are the single most important reference points in civil action negligence/malpractice lawsuits alleging that the therapist’s act or omission caused client harm. Conversely, the key to prudent legal risk management in therapy with deaf people is mastering the code of ethics and its fundamental principles, and understanding the elements that must be proven in a negligence/malpractice lawsuit (Bennett, Bryant, VandenBos, & Greenwood, 1990).