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Pennsylvania’s Psychiatrist/Psychologist-Patient Privilege: What it is and When it is Waived

Section 5944 of the Pennsylvania Mental Health Procedures Act, 42 Pa.C.S. § 5944, protects confidential communications shared between a psychiatrist or psychologist and their patient from disclosure. 

Otherwise known as the psychiatrist/psychologist-patient privilege, the privilege precludes the discovery of confidential communications between a patient and psychiatrist/psychologist made in the course of treatment. See 42 Pa.C.S. § 5944. Communications includes oral communications and any reference to privileged communications in a file. Commonwealth v. Simmons, 719 A.2d 336, 343 (Pa. Super. Ct.  1998). The privilege applies not only to psychiatrists and psychologists, but to any member of a patient’s treatment team. Farrell v. Regola, 150 A.3d 87, 100 (Pa. Super. Ct. 2016). Significantly, the psychiatrist/psychologist-patient privilege does not protect the psychotherapist’s own opinion, observations, diagnosis, or treatment alternativesCommonwealth v. Segarra, 228 A.3d 943, 953-54 (Pa. Super. Ct. 2020), appeal denied, 237 A.3d 975 (Pa. 2020).

The purpose of the psychiatrist/psychologist-patient privilege is “to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure.” Gormley v. Edgar, 995 A.2d 1197 (Pa. Super. Ct. 2010) (citation and quotation marks omitted). 

Although a highly regarded privilege, a patient waives the psychiatrist-patient privilege when they put their mental health at issue in a case. The leading precedent on the waiver of psychiatrist-patient privilege is Gormley v. Edgar where an injured plaintiff alleged that a defendant’s negligence in an auto accident caused the plaintiff to suffer anxiety, shock, mental anguish and humiliation. Id. at 1205. In answering whether or not the plaintiff put their mental health at issue in the case, the Pennsylvania Superior Court held that general allegations of emotional or mental pain and suffering alone are insufficient to put a party’s medical condition at issue, and thus waive the psychiatrist-patient privilege. Id. However, allegations of “mental injury, severe emotional trauma requiring treatment, or psychiatric/psychological conditions” or allegations of the aggravation of existing mental health problems may waive the privilege. Id. The Gormley plaintiff was found to have waived the psychiatrist/psychologist-patient privilege when they alleged anxiety, a medically diagnosable mental disorder, as a result of defendant’s alleged negligence. Therefore, communications between the patient and psychiatrist/psychologist regarding the patient’s anxiety was discoverable.

When either pleading or responding to a personal injury complaint, it is important to be mindful of the types of injury allegations raised, and whether the injuries complained of are general allegations or medically diagnosable conditions or disorders, putting the patient’s mental health at issue, and potentially waiving the psychiatrist/psychologist-patient privilege.

©2022 Strassburger McKenna Gutnick & GefskyNational Law Review, Volume XII, Number 109
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About this Author

Kathleen M. Mannard Attorney Litigation Nonprofit Strassburger McKenna Law Firm
Associate

Kathleen M. Mannard is an Associate Attorney at Strassburger McKenna Gutnick & Gefsky. Ms. Mannard works primarily in the areas of litigation and the public/non-profit sector, with a focus in municipal law and land use.

Ms. Mannard came onboard as a full-time member of the SMGG team after working as a summer associate with the firm in 2019. Prior to her summer position, Ms. Mannard worked in Washington, D.C. with the Department of Justice and the National Trust for Historic Preservation. She also did extensive work within Pennsylvania with...

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