HOUSE BILL ANALYSIS

                  HB 1260

Title:  An act relating to privileged communications between certified counselors and clients.

Brief Description:  Providing that communications between certified counselors and their clients are privileged.

Sponsors:  Representatives Skinner, Dyer, Cody, Backlund, Murray, Anderson, O'Brien, Mason and Quall.

HOUSE COMMITTEE ON LAW & JUSTICE

Staff:  Edie Adams (786-7180).

Background:  The judiciary has inherent power to compel witnesses to appear and testify in judicial proceedings so that the court will receive all relevant evidence.  However, the common law and statutory law recognize exceptions to compelled testimony in some circumstances, including "privileged communications."  Privileges are recognized when certain classes of relationships or communications within those relationships are deemed of such importance that they are to be protected. 

Under the common law, four criteria must be satisfied to find a privilege:  (1) the communication must be made in confidence; (2) the element of confidentiality must be essential to the relationship; (3) the relationship is one that should be fostered; and (4) the injury of disclosing the communication must be greater than the benefit of disclosure.

Washington statutory law establishes a number of privileges, including communications between the following persons:  (1)  husband and wife; (2) attorney and client; (3) clergy and confessor; (4) physician and patient; (5) psychologist and client; (6) optometrist and client; and (7) law enforcement peer support counselor and a law enforcement officer in certain circumstances.

The privilege for communications between a psychologist and client does not apply in the following circumstances:  (1) in a legal suit between the psychologist and client; (2) the communication concerns the commission of a future crime; (3) where there is suspected child abuse or neglect; (4) in a mental health involuntary commitment proceeding; or (5) in a chemical dependency involuntary commitment proceeding.

Certain counselors may be registered or certified by the secretary of the Department of Health (DOH).  An applicant may register as either a counselor or hypnotherapist by submitting certain information and a registration fee to the DOH.  If a counselor meets certain requirements, the counselor may be certified as either a social worker, a mental health counselor, or a marriage and family therapist.

Communications between a registered or certified counselor and a client are generally confidential, but may be disclosed in the following situations:  (1) with the written consent of the client or the client's legal representative; (2) if the communication reveals the contemplation or commission of a crime or harmful act; (3) if the client is a minor and the information obtained indicates the minor was the victim or subject of a crime, the counselor may testify in an examination or trial where the crime is the subject of the inquiry; (4) if the client waives the privilege by bringing charges against the counselor; (5) in response to a subpoena from a court or the secretary of the DOH; or (6) when a report of suspected child abuse or neglect is required to be made.

In general, health care records are confidential and may only be released with the authorization of the patient, or in limited circumstances without patient authorization.

Summary of Bill:  The provision that generally prohibits the disclosure of confidential communications between registered or certified counselors and clients is repealed.  A privilege for certified counselors and clients is created.

Confidential communications between a client and a certified counselor are privileged against compulsory disclosure to the same extent and subject to the same conditions as confidential communications between a psychologist and client.

Fiscal Note:  Not requested.

Effective Date:  Ninety days after adjournment of session in which bill is passed.

                 Office of Program Research