When a patient initiates a legal matter in which her medical condition is at issue, she generally waives the privilege of confidentiality of general medical records. The records from all relevant health care providers are likely to be open to the court and to attorneys for both plaintiff and defendant. Common examples are claims for damages for physical or mental harm due to accidents and claims against employers for work-related disability determinations. However, it may still be possible to maintain the privilege of confidentiality of psychotherapy records. Psychotherapists tend to oppose the release of information regarding the contents of psychotherapy, using the arguments associated with Jaffee v. Redmond. The resolution of such difficult situations commonly involves review of the records by the presiding judge in camera to select for disclosure only information relevant to the case at hand. Strong opposition to exposing the details of psychotherapy is essential to minimize the misuse of records by attorneys for "fishing expeditions" or to harass or embarrass opposing litigants and their relatives or associates.
If the patient initiates malpractice litigation or a complaint to a licensing board against her psychotherapist, the patient's psychotherapy records may be used without authorization in the investigation and adjudication of the matter. Full and fair investigation of an ethics complaint to a professional organization against a psychotherapist necessitates the patient's authorization of access to psychotherapy records and information. Professional colleagues conduct the investigation within the ambit of confidentiality.
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