By Michael Coco

The New Jersey Supreme Court, through the Committee on the Rules of Evidence (the “Committee”) is proposing changes to the rules on admitting evidence and allowing testimony from health care professionals involved in the counseling and treatment of mental health patients. As it currently stands, New Jersey has a patchwork statutes, evidentiary rules, and agency regulations (“Current Rules”) that address privilege in the mental health setting. The Committee is looking to replace the Current Rules with one unified evidentiary rule (“Draft Rule”) that covers all mental health related communications, including the specific practitioners who are granted this privilege and when the privilege applies.

The Draft Rule confers privilege on the following professionals: psychologists; physicians (including psychiatrists); marriage counselors; family therapists; victim counselors; social workers; nurses; professional counselors; and psychoanalysts. These professionals would be able to claim privilege under most circumstances if asked to testify to any conversation with the mental health patient. In fact, the Draft Rule states that such professionals “shall claim the privilege unless otherwise instructed by the patient.” In other words, these professionals must maintain patient confidentiality unless they receive specific consent from the patient, or if an exception applies. Exceptions in the Draft Rule are similar to current privilege exceptions, and include allowing the professional to disclose information if the patient is a danger to himself or others. Patients, guardians, family members and representatives of a deceased patient may claim the privilege, but the mental health professional may not claim the privilege if the patient waives the privilege.[1]

Although the list of professionals in the Draft Rule is thorough, the Committee should consider including emergency responders, i.e. first responders, emergency medical technicians, and paramedics. These emergency responders often record vital information on a patient’s condition and use that information to determine transport options, and they relay the information to medical facilities or other emergency personnel. Patients should feel comfortable telling these responders – in confidence – about their current mental health crisis. Allowing the patient to confide in first responders will also increase the likelihood of the patient disclosing steps he may have taken to harm himself, such as ingesting a poison. Allowing a mental health patient to confide in first responders will also alert the responders to any danger the patient may pose to the first responders or to the public at large.

The Committee has not yet finalized the Draft Rule and is soliciting comments and opinions from the public. If you have thoughts on the mental health privilege, please share them with the Committee. The deadline for comments for the Draft Rule is June 2, 2014. More information on the Committee and submitting comments can be found here:

For more information, please contact Michael Coco

[1] In certain privileged conversations, such as the priest-penitent privilege, both parties hold the privilege. In that case, for example, a priest will not be forced to testify to a privileged conversation even if the penitent waives his or her own privilege.