A privilege is a legal rule that protects communications within certain relationships from compelled disclosure in a court proceeding.
One such privilege, which is of long standing and
applicable in all legal settings, is the
attorney-client privilege. Communications
between an attorney and a client that were made for
the purpose of obtaining legal advice may not be
disclosed unless the client consents to the
Connecticut has numerous other privileges that have
been created by statutes.1
While some of these statutes use the terms "privileged" and "confidential" interchangeably,
they all protect communications made in confidence
in the context of the professional relationship.2
They vary in their protections depending on the
needs of the particular relationship.
Like other confidentiality statutes, the privilege
statutes grant control over the release of the information to the individual and also define circumstances under which the information may be released without the consent of the individual.
A requirement of all privileges is that the communication
must have been intended to be confidential at the
time it was made, so that any conversation that takes place in the presence of other parties will not be privileged.
The following provides a brief discussion of the
statutory privileges most relevant to juvenile court proceedings and the commonly encountered exceptions for the privileged communications.
Courts will interpret exceptions very narrowly and allow disclosure without consent only if the situation fits squarely within one of the enumerated exceptions in each statute. For a complete list of exceptions, refer to the statute.
HEALTH CARE PROFESSIONALS
Communications with the following health care professionals are protected by statute:3
Family and Marital Therapist
The communications must have been made for the purpose of diagnosis and treatment of a physical, mental, or behavioral health disorder.
The term "health care professional" cover a wide range of clinical work that may be grouped together as therapeutic relationships. The nature of their work means that they share many of the same limitations.
"Privileged communications" refer to all information exchanged between an individual and a health care professional related to the diagnoses and treatment of the individual. In general, that means that the professional may not be legally required to disclose the contents of the communications over the objection of the individual.
Disclosure with consent
A person may voluntarily consent, either orally or in writing, to the disclosure of the information.
Consent may be limited to specific pieces of information and/or to disclosure only to specific other persons or for specific purposes.
The court will interpret the scope of the consent vary narrowly.
A parent may give consent to disclosure of information concerning a child, but if an attorney has been appointed for the child, that attorney represents the child’s interest and may withhold consent for disclosure even if the parent seeks the disclosure.5
Disclosure without consent
There are several common exceptions to the privileges for health care professionals that allow disclosure without the individual’s consent. Courts will interpret exceptions very narrowly, and will allow disclosure without consent only if the situation fits squarely within one of the enumerated exceptions in each statute.
There are four exceptions, discussed below, that are common to most health care professionals.
Court ordered exam
If a court orders an examination for the purposes of reporting back to the court about the physical or mental condition of the party, the person will be told that anything said will not be confidential.
The report becomes part of the court record and may be protected from further disclosure by the laws regarding the confidentiality of court records.
See Juvenile Court Records.
Health Placed in Issue
This exception6 addresses a matter of fairness in legal proceedings. If a person could claim in a legal proceeding that his or her mental or physical condition was a factor that had to be considered by the court in resolving the case, then the opposing party must be given the opportunity to dispute the claim, and this would require that the opposing party, and ultimately the court, have sufficient evidence concerning the person’s claim as to his or her mental condition to allow a fair analysis of it.
However, the exception has several limitations, which will be discussed below.
Several things are required before a disclosure may be permitted by the court without consent of the person:
- it must be in a civil proceeding,
- the party must have introduced his or her mental condition into the case, and
- the court must decide that the interests of justice outweigh the need to protect the information.
Harm to Others
The confidentiality of communications made to a health care professional will not be protected when it leads the professional to believe that the person poses a danger to him- or herself or to any other individual. This exception is fairly broad, allowing disclosure when the professional has good reason to believe that there is a risk of imminent harm to any individual.
This exception puts a duty on the professional to protect others from being harmed by the professional’s client. It is a matter of judgment on how great a risk
of harm, and the seriousness of that harm, is actually posed by the individual. Because no harm has yet occurred, and therefore no crime has been committed, once the professional makes the necessary disclosure to prevent the harm from occurring, any further disclosure is prohibited.7
Abuse of others
If the professional has reason to suspect or believe that a child or an elderly person, disabled, or incompetent person is being abused, the professional is obligated by mandated reporting statutes to report the abuse to the agency responsible for caring for these individuals. Because such abuse, if proven, is a crime, the exception extends to whatever further disclosure is necessary for the prosecution of the crime, including testimony in court.8
DOMESTIC VIOLENCE AND SEXUAL ASSAULT COUNSELORS
This statute has very specific provisions pertinent to the work of these counselors and the evidentiary needs in the prosecution of criminal conduct.9 The person must have consulted a
domestic violence counselor or a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused by an
incidence of domestic violence or a sexual assault.
Disclosure without consent is permitted under the following circumstances:
- in matters of proof concerning chain of custody of evidence;
- in matters of proof concerning the physical appearance of the victim at the time of the injury; or
- when the domestic violence counselor or sexual assault counselor has knowledge that the victim has given perjured testimony and the defendant or the state has made an offer of proof that perjury may have been committed.
HUSBAND AND WIFE
Two types of spousal privilege are recognized in Connecticut:
The adverse spousal privilege allows the spouse of a criminal defendant to either testify or refuse to testify against the defendant if the parties are married at the time of the trial.10
Even if the defendant objects to his or her spouse testifying, that person may still choose to testify.11
The marital communications privilege protects confidential communications made during the marriage, even if the marriage has been dissolved prior to the trial.12
A spouse is not required to testify to a confidential communication made during the marriage, and is not allowed to testify to such a communication over the objection of the other spouse.13
The privilege against the disclosure of marital
communications is inapplicable in any child
protection proceeding and either may testify as to
any relevant matter.14
In a criminal proceeding, the spousal
privileges have been limited by statute.15
The testimony of a spouse may be compelled in the
same manner as for any other witness in a criminal
proceeding against the oher spouse for
joint participation with the spouse in criminal conduct;
bodily injury, sexual assault or other violence attempted, committed or threatened upon the spouse; or
bodily injury, sexual assault, risk of injury, or other violence attempted, committed or threatened upon the minor child of either spouse, or any minor child in the care or custody of either spouse.