Introducing N.J.R.E. 534: A Unified Mental Health Privilege

October 9, 2015Articles Garden State Gavel Blog

There is a new rule of evidence in New Jersey that seeks to clarify the plethora of privileges governing confidential communications between mental health service providers and patients suffering from mental or emotional health conditions. N.J.R.E. 534, as adopted by the Supreme Court on January 15, 2015, and which will go into effect on July 16, 2016, creates a comprehensive mental health provider privilege which is intended to supplant the different and somewhat confusing privileges between patients and a vast array of unique mental health providers.

Specifically, N.J.R.E. 534 covers confidential communications made to providers in eleven (11) fields of practice including: psychologists, physicians, psychiatrists, marriage and family therapists, social workers, alcohol and drug counselors, nurses, professional, associate and rehabilitation counselors, psychoanalysts, midwives, physician assistants, and pharmacists.

Previously, these communications were governed by different rules for each category depending on who received the communication. This created a hierarchy of privileges resulting in disparate treatment for confidentiality purposes. For example, privileges that attached to communications with a psychologist traditionally carried more weight than communications with a social worker.

According to the panel who studied this issue, a unified rule that applied equally to communications with mental health care providers regardless of their professional credentials would encourage utilization of these services, protect patient privacy and not adversely impact lower- income patients who received services through social workers and counselors as opposed to higher credentialed providers.

Like all rules of evidence, there are plenty of exceptions. Communications pertaining to civil commitments, fitness to stand trial, will validity, court- ordered examinations, cases in which the patient’s condition is an element of a claim, and statutorily mandated reports, such as those documenting child abuse or neglect are not subject to the new privilege.