Privileged Communication Between the Licensed Counselor and the Client

A new layer of confidentiality for the clients of licensed counselors in Washington State.

Note to the reader: Read this carefully. The concept of privilege extends far beyond the concept of confidentiality. And psychotherapy is now a defined word that applies only to licensed counselors (as opposed to being a general and undefined term in Washington State).

Social Workers (LICSW) privilege goes into effect on July 26th, 2009. This was a bill that the Washington Mental Health Counselors Association actively and persistently lobbied the Legislature in Olympia, WA on behalf of our membership. This bill would not have passed without the relevant mental health professional associations (WMHCA, WAMFT, and WSSCSW) working together for our respective members. I have attached some basic information from the bill summary that gives an outline of the bill and the resulting protections afforded to our clients and members.

For further information on the United States Supreme Court ruling that serves as the basis for privilege for our membership, please refer to - You will notice that the Supreme Court case concerned a Licensed Social Worker and while the individual title is mentioned in the briefings, the privilege was granted due to her role as a Licensed Psychotherapist. After the passage of the Certified Counselor/Adviser bill in 2008, LMHCs, LMFTs, and LICSWs are permitted to practice as and call themselves a psychotherapist. Certified Counselors/Advisers are not psychotherapists and therefore, are not eligible under the Jaffee vs. Redmond ruling for client privilege protection.

Summary: Mental health counselors, independent clinical social workers, and marriage and family therapists licensed under chapter 18.225 RCW may not disclose, or be compelled to testify about, any information acquired from persons consulting the counselor in a professional capacity when the information was necessary to enable the counselor to render professional services to those persons.

Exceptions to the testimonial privilege include (1) the client provides written authorization to disclose the information or to testify; (2) the client brings charges against the mental health practitioner; (3) the Secretary of Health subpoenas information pursuant to a complaint or report under the Uniform Disciplinary Act; (4) the information is required to be disclosed under statutory mandatory reporting provisions; and (5) the practitioner reasonably believes that disclosure will avoid or minimize an imminent danger to the health or safety of an individual, however there is no obligation to disclose in this situation.

[Information provided by Adrian R. Magnuson-Whyte, MA, LMHC, NCC, Executive Director Washington Mental Health Counselors Association, June 2009.]

Background: The judiciary has the power to compel witnesses to appear before the court and testify in judicial proceedings. However, the common law and statutory law recognize exceptions to compelled testimony in some circumstances, including testimonial privileges. Privileges are recognized when certain classes of relationships or communications within those relationships are deemed of such societal importance that they should be protected.

The Washington Legislature has established a number of testimonial privileges in statute, including communications between the following persons: (1) spouses or domestic partners; (2) attorney and client; (3) clergy and penitent; (4) physician and patient; (5) psychologist and client; (6) optometrist and client; (7) law enforcement peer support counselor and a law enforcement officer; and (8) sexual assault advocate and victim.

Licensed mental health counselors, marriage and family therapists and social workers currently are required to hold information received in the rendering of professional services as confidential, with some specified exceptions. However, mental health counselors', marriage and family therapists' and social workers' communications with their clients [have not previously been] afforded testimonial privilege.

[Above background information was adapted from an analysis prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.]

Implications for the counseling field: Now that the word psychotherapy and psychotherapist have been defined as applying only to licensed counselors (and not to registered counselors, certified counselor or counselor advisors) it means that many mental health practitioners need to clean up their web sites and remove any references to psychotherapy and being a psychotherapist.

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