Confidentiality vs. Privilege: what is the difference?

One of the conceptual questions that clinicians (particularly forensic clinicians) have concerns the difference between confidentiality and the psychotherapist-patient privilege. Many clinicians use them interchangeably, though they are actually two different concepts.

The comparison of confidentiality and privilege is a difficult question to address, partly because it is a comparison of apples and oranges. The comparison is actually much easier when considered 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.

A privilege, on the other hand, is a legal right that often takes the form of an exemption. In our profession, the way this most often takes form is as an exemption from a duty to provide information in a legal proceeding.

A hypothetical might be helpful:

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. Dr. Fritz knows that he has several *duties* to Gloria, one of which is to maintain the confidentiality of their communications, so he goes before the court and asserts a privilege. By asserting a 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(nother) 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 a bit 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.

This is somewhat tricky, so if there are any questions please feel free to post them as comments.

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