Privileged communication

Here's a distinction the NCE tests relentlessly: confidentiality is ethical, privilege is legal. Confuse the two and you'll miss an easy point — keep them straight and you'll pick up several.

Privileged communication is a legal right, created by statute, that protects a client's disclosures from being revealed in a legal proceeding — it keeps a counselor from being forced to testify about what a client said in court. Confidentiality, by contrast, is the broader ethical duty not to disclose client information in any setting. Think of privilege as confidentiality's narrower, courtroom-specific legal cousin.

The single most-tested fact: privilege belongs to the client, not the counselor. The client holds the privilege, meaning only the client can assert it or waive it. If the client waives privilege, the counselor may be compelled to testify. The counselor's job is to assert privilege on the client's behalf unless the client waives it or a court overrides it.

Privilege is jurisdictional: it exists only where state (or federal) law grants it, and its scope varies by state and by the type of provider. The landmark case is Jaffee v. Redmond (1996), in which the U.S. Supreme Court recognized a psychotherapist–patient privilege in federal courts and extended it to licensed clinical social workers (and, by extension, other licensed therapists). Privilege can be overridden — for example, by mandated-reporting duties, danger to self or others, court-ordered evaluations, or when the client raises their mental state as part of a legal claim.

Clinical Pearl: Privilege is a legal concept that belongs to the client — only the client can waive it, and because it is created by statute it is jurisdictional (varies by state); Jaffee v. Redmond (1996) established the psychotherapist–patient privilege in federal court.