Therapist-Client Confidentiality and Limits
<p>Is the Therapist-Client confidentiality valid even after the passing away of the client? Also if not what repercussions could a Therapist face for revealing such details after the said person had passed away?</p>

<p>I don't have access to case law from India, but this is an area upon which common law countries including India should be similar.</p>
<p>The attorney-client privilege survives death. <em>See, e.g., Wesp v. Everson</em>, 33 P.3d 191 (Colo. 2001). The therapist-client privilege is modeled on the attorney-client privilege but is not identical.</p>
<blockquote>
<p>Although New Hampshire's therapist-client privilege statute is modeled
on the attorney-client privilege, there are separate and distinct
policy considerations underpinning the therapist-client privilege. The
New Jersey Supreme Court highlighted these differences in analyzing
its own psychologist-patient privilege statute, also modeled on the
attorney-client privilege.</p>
<p>&quot;[T]he public policy behind the psychologist-patient privilege is in
some respects even more compelling.... The psychologist-patient
privilege ... serves to protect an individual's privacy interest in
communications that will frequently be even more personal, potentially
embarrassing, and more often readily misconstrued than those between
attorney and client. Made public and taken out of context, the
disclosure of notes from therapy sessions could have devastating
personal consequences for the patient and his or her family....
Especially in the context of matrimonial litigation, the value of the
therapist-patient relationship and of the patient's privacy is
intertwined with one of the most important concerns of the courts—the
safety and well-being of the children and families.&quot;</p>
<p>Kinsella v. Kinsella, 150 N.J. 276, 696 A.2d 556, 584 (1997).</p>
<p>Indeed, the public policy behind the therapist-client privilege may be
even more compelling than that behind the usual physician-patient
privilege. Treatment by a physician for physical ailments can often
proceed successfully on the basis of a physical examination, objective
information supplied by the patient, and the results of diagnostic
tests. Effective psychotherapy, by contrast, depends upon an
atmosphere of confidence and trust in which the patient is willing to
make a frank and complete disclosure of facts, emotions, memories, and
fears.</p>
<p>Jaffee v. Redmond, 518 U.S. 1, 10, 116 S.Ct. 1923, 135 L.Ed.2d 337
(1996). “Many physical ailments might be treated with some degree of
effectiveness by a doctor whom the patient did not trust, but a
psychiatrist must have his patient's confidence or he cannot help
him.” In re Brenda H., 119 N.H. 382, 386, 402 A.2d 169 (1979)
(quotation *665 omitted), superseded on other grounds as recognized by
In re Tracy M., 137 N.H. 119, 123–24, 624 A.2d 963 (1993).</p>
<p>By fostering productive relationships between therapists and their
clients, the therapist-client privilege “[advances] the public good
accomplished when individuals are able to seek effective mental health
counseling and treatment.” Kinsella, 696 A.2d at 566. There is a
serious risk that permitting parents unconditional access to the
therapy records of their children would have a chilling effect on the
therapist-client relationship, thus denying the children access to
productive and effective therapeutic treatment. “[T]he mere
possibility of disclosure may impede development of the confidential
relationship necessary for successful treatment.... [It is] difficult
if not impossible for [a psychotherapist] to function without being
able to assure ... patients of confidentiality and, indeed, privileged
communication.” Jaffee, 518 U.S. at 10, 116 S.Ct. 1923 (quotation
omitted).</p>
<p>The weight of authority in other jurisdictions supports protection for
the therapy records of children who are at the **987 center of a
custody dispute or whose interests may be in conflict with those of
their natural guardians. See, e.g., Attorney ad Litem v. Parents of
D.K., 780 So.2d 301 (Fla.Dist.Ct.App.2001) (seventeen-year-old child
could assert privilege over her parents' joint waiver in child custody
dispute); Bond v. Bond, 887 S.W.2d 558, 560–61 (Ky.Ct.App.1994) (in
child custody dispute, neither parent may assert the privilege on the
child's behalf, and the court may interview the therapist or appoint a
guardian ad litem for the sole purpose of recommending whether and to
what extent the privilege should be waived); Nagle v. Hooks, 296 Md.
123, 460 A.2d 49 (1983) (parents involved in a custody dispute cannot
agree or refuse to waive the privilege on a minor child's behalf, and
the court must appoint a guardian to act, guided by the best interests
of the child); cf. In re Daniel C.H., 220 Cal.App.3d 814, 269
Cal.Rptr. 624, 629–33 (1990) (in dependency proceeding, where parent
was accused of molesting his minor child, policy considerations
regarding parental conflict of interest and potential harm to the
child as a result of disclosure prevented parent from waiving the
privilege on behalf of the minor child); S.C. v. Guardian ad Litem,
845 So.2d 953, 956–60 (Fla.Dist.Ct.App.2003) (in dependency
proceeding, minor child could assert the privilege against guardian ad
litem); In re Adoption of Diane, 400 Mass. 196, 508 N.E.2d 837, 840
(1987) (in adoption proceeding, where the parent and child had
potentially conflicting interests and there was uncertainty concerning
the parent's ability to further the child's best interests, parent was
not allowed to exercise the privilege on the child's behalf, although
a neutral guardian could assert or waive it); In re M.P.S., 342 S.W.2d
277, 283 (Mo.Ct.App.1961) (in neglect proceeding, accused parent could
not claim child's *666 physician-patient privilege to prevent child's
doctor from testifying regarding child's injuries).</p>
</blockquote>
<p><em>In re Berg,</em> 886 A.2d 980, 986–87 (N.H. 2005).</p>
<p>Usually, the privilege would survive death, but it might be possible to waive by the appropriate person, in the interests of the client or their inferred wishes, for example, to prosecute someone for murdering the client.</p>

<p>There are ethical and legal considerations - but, as we know these are not the same thing.</p>
<p>The Indian Journal of Psychiatry discuss this specifically in relation to psychotherapy ethics - but this is not the law. See <a href="http://www.indianjpsychiatry.org/cpg/cpg2009/article11.pdf" rel="nofollow noreferrer">here</a>:</p>
<blockquote>
<p>Agreements about confidentiality continue after the client’s death
unless there are overriding legal considerations.</p>
</blockquote>
<p>There is also an excellent article exploring legal and ethical issues in Psychotherapy in India more broadly <a href="https://mhi.org.in/voice/details/safeguarding-client-and-counselor/" rel="nofollow noreferrer">here</a>.</p>
<p>With specific reference to India:</p>
<blockquote>
<p>According to Mental Health Care Act 2017, Section 23 (1), “A person
with mental illness shall have the right to confidentiality in respect
of his mental health, mental healthcare, treatment and physical
healthcare.” The law further adds that it is the duty of the health
professionals (that includes registered psychologists) to keep all the
information confidential that has been obtained during the treatment.
The law also states in Section 24 (1) that photographs or any other
information related to the patient cannot be released in media without
the consent of the person with mental illness.</p>
</blockquote>
<p>Furthermore - the Rehabilitation Council of India (who register psychotherapists and clinical psychologists), who follow (since around 2005) a very American code of conduct regarding ethics on confidentiality - can be found <a href="http://www.egyankosh.ac.in/bitstream/123456789/23938/1/Unit-2.pdf" rel="nofollow noreferrer">here</a>. This discusses client death.</p>
<p>Not specific to India or Therapists - but a key piece of guidance for us doctors can be summarised <a href="https://www.medicalprotection.org/uk/articles/confidentiality-after-death#:%7E:text=Your%20duty%20of%20confidentiality%20to,the%20patient%20was%20a%20child." rel="nofollow noreferrer">here</a> (UK). In short - our duty of confidentiality continues after a patient dies. There is NO clear legislation on this - and it has been challenged a number of times. A key case is found <a href="http://informationrights.decisions.tribunals.gov.uk//DBFiles/Decision/i25/mrspbluckvinformationcommissioner17sept07.pdf" rel="nofollow noreferrer">here</a>, from the UK.</p>
<blockquote>
<p>However, we believe that the public interest in maintaining
confidentiality in the medical records of a deceased outweighs, by
some way, the countervailing public interest in disclosure.</p>
</blockquote>
<p>Death and the act of breach of confidence is explored (from an old source, <a href="http://www.lawcom.gov.uk/app/uploads/2016/08/LC.-110-BREACH-OF-CONFIDENCE-REPORT-ON-A-REFERENCE-UNDER-SECTION-3le-OF-THE-LAW-COMMISSIONS-ACT-1965.pdf" rel="nofollow noreferrer">here</a>)</p>
<blockquote>
<p>Our conclusion is therefore that the personal representatives of
a person to whom an obligation of confidence is owed but who has died
before any breach of confidence has occurred should have a right of
action for a subsequent breach of that confidence but only to the
extent that such a benefit can pass to them under the general law
governing the transmissibility of <a href="https://hallellis.co.uk/chose-in-action/" rel="nofollow noreferrer">choses-in-action</a>.</p>
</blockquote>
<p>More recently - ICO (Information Commissioners Office) have <a href="https://ico.org.uk/media/for-organisations/documents/1432163/information-provided-in-confidence-section-41.pdf" rel="nofollow noreferrer">said</a>:</p>
<blockquote>
<p>Where a legally enforceable duty of confidentiality is owed to a
living individual, after death it can be enforced by the deceased’s
personal representative.</p>
</blockquote>
<p>Sanctions against a practitioner would be from their regulatory body, or a private law suit from an interested (lawful) party via the tort of breach of confidence. Breach of confidence gives rise to a civil claim where the estate of the deceased may be able to claim <a href="https://www.inbrief.co.uk/contract-law/breach-of-confidence/" rel="nofollow noreferrer">damages</a>. How this would play out in court, is a different matter, given the fact that the person is dead. The Human Rights Act 1998 has developed the law on breach of confidence so that it now applies to private bodies as well as public ones.</p>
<p>Interestingly - you cannot defame the dead (Defamation Act 2013); so the family could not sue for defamation of someone who is deceased, for example. See <a href="https://www.lexisnexis.co.uk/blog/wipit/can-you-defame-the-dead" rel="nofollow noreferrer">here</a>.</p>

india confidentiality