Confidentiality vs. Privilege: what is the difference?

One day you receive a telephone call from someone whose voice you do not recognize.  The caller asks, “do you see _______ (insert the name of one of your clients) as a patient in your practice?”  Because you are trained in your ethical and legal responsibilities, you answer appropriately.  Later that week, in a consultation with a colleague, you explain that you answered the way that you did because the information requested was:

a.) Not protected
b.) Privileged
c.) Confidential
d.) None of the above

If you had difficulty choosing between answers “b” and “c,” you aren’t alone.  Count yourself among the majority of clinicians who have considerable difficulty articulating the difference, or if there is one at all.  Many clinicians use them interchangeably, though they are actually two different concepts.

The conceptual difference between confidentiality and the psychotherapist-patient privilege is difficult to articulate.  When asked about the difference between confidentiality and privilege, an attorney might describe privilege as an evidentiary problem or as a judicial determination.  But no matter the answer, the question might be met with some puzzlement because in the legal world these two concepts are not easily comparable.  An analogue in the clinical world might be if a clinician is asked about the difference between dysthymia and Scale 2 on the MMPI; they are related, but it requires some contortion to align the two.

The reason the comparison of confidentiality and privilege is a difficult question to address is partly because it is a comparison of apples and oranges.  The comparison is actually much easier to understand (and easier to explain) when reframed as the difference between a “duty” and “privilege,” rather than “confidentiality” and “privilege.”

A duty is a legal obligation owed to another, and to which that other person has a corresponding legal right.  In the case of the psychotherapist-patient legal relationship, therapists actually have several duties that they owe, one of which is the duty to maintain confidentiality.  (Another duty that clinicians are familiar with is the duty to protect.)  To reiterate, confidentiality is a kind of duty, one of many that clinicians have.  This why we use the term, “duty of confidentiality.”

A privilege, on the other hand, is another kind of a legal right, but one that usually takes the form of an exemption from the duty to do something.  In clinical work, the way this most often takes form is as an exemption from a duty to provide information in a legal proceeding.

Like statistics, legal concepts often make more sense when illustrated by example, so consider how these ideas play out in the following hypothetical:

Dr. Fritz is seeing Gloria as a psychotherapy patient, and because they have a professional relationship the law recognizes that Dr. Fritz has a duty to maintain the confidentiality of their communications.  In other words, Dr. Fritz has a legal obligation (the duty) to maintain Gloria’s confidence, and if he does not uphold this duty he is effectively depriving Gloria of her legal right to this confidence.

Some years later, Gloria is sued by Albert after she strikes him over an argument about logic.  To undermine her credibility, Albert wants to show that Gloria is “unstable” and his attorney, Carl, subpoenas the records of her treatment with Dr. Fritz to enter into evidence.  This presents a problem for Dr. Fritz.  He knows that he has several duties to Gloria, one of which is to maintain the confidentiality of their communications, so he asserts the psychotherapist-patient privilege.  By asserting the privilege, Dr. Fritz is saying (in legalese), “I recognize that I have a duty to provide information to the Court (a legal obligation), but I also have a competing duty to my patient to keep her confidence.  I believe that in this case my duty to maintain the confidences of my psychotherapy patient outweighs my duty to provide information that could be used as evidence, and because of this I believe that I should be exempted from my duty to provide this information.”

This exemption is the essence of this sort of privilege.  In Dr. Fritz’ case, maybe Albert’s lawyer, Carl, backs down once Dr. Fritz asserts his privilege (exemption), or maybe the presiding judge makes a ruling on the matter.  In either case, the privilege in this case is really the assertion of an exemption to a duty.

Many people find it easier to think about confidentiality in the context of a duty, rather than as a privilege.  Similarly, it’s easier to think about a privilege as an exception to the duty to do something.  Considering all of this we see that the answer to the question at the beginning of this article is “c.”

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2 Responses to “Confidentiality vs. Privilege: what is the difference?”

  1. Renita D'Abreo says:

    Needed to know the difference for ‘Law and Medicine’ studies. Found it put in an easy-to-understand manner.

  2. Privilege as an exemption to a duty. Very interesting. The way you describe it is very straightforward. I simply never thought of it that way. And thanks for the example scenario (always of help to my way of understanding something). I’ve worked with more than one Federal Criminal Defense Attorney, so I like to think I know a little something about the law. But it seems there’s always something more to learn and understand.

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