Confidentiality and privileged communication

Abstract

Estelle Promislo is a student the MSW program at the School of Social Work, University of Pennsylvania, Philadelphia. In an age of large data banks that privilege was established for the legal keep records on individual consumers profession under English common of goods and services, it is natural to law. All other professional privileges have renewed concern for the privacy are statutory. Originally, the attorney of individuals. Although it is necessary client privilege was founded on the to relinquish some degree of privacy inviolability of the attorney's oath of to obtain a service, the question rehonor, and the privilege belonged to mains just how much privacy must be him. At an early date, this conception surrendered, under what circumgave way to the modern doctrine that stances, and what such a surrender the privilege belongs to the client. means. tension that surrounds privilege protects both the client and these issues is felt every service field, the professional, but the confidence These issues deserve a fresh review belongs solely to the client. It is en social work because social workers trusted to the professional, but only are currently pressing to have their the client can waive the confidence, clients' confidences given a special This is true for all professions enjoying status under law, that of privileged testimonial privilege.4 communication. A report adopted by Wigmore has stipulated four pre the 1975 Delegate Assembly of the requisites to a valid claim of privilege: National Association of Social WorkThe communications must originate ers (NASW) stated that in conjuncin a confidence that the client believes tion with licensing efforts or, if approwill not be disclosed.5 Clients must be priate, independent of such efforts, lieve that their secrets will be kept. NASW chapters should seek enactFurthermore, the content of the dis aient at the state level of privileged closure must be pertinent to the pur communication statutes. 1 pose of the consultation. Information There seems to be an assumption that is not relevant to the professional among social workers that licensing problem is not privileged, laws will assure meaningful protecConfidentiality must be essential to tion of confidential information, but the full and satisfactory maintenance this is putting the cart before the of the relation between the parties.6 horse. A review of the applicable case There is common belief that free corn law shows that courts will consider munication can be advanced only privileged communication waived if an atmosphere of mutual trust. Ac there is no confidentiality.2 Therefore, cording to Morgan, Macguire, and to implement privileged communicaWeinstein, To induce clients to make tion, it is essential that social work such communications, the privilege to first establish procedures to maintain prevent their later disclosure is said by confidentiality. Without confidentialcourts and commentators to be a ne ity, there can be no privilege even if cessity. 7 there is a privilege statute. Wigmore, relation must be one that, the foremost legal authority on evithe opinion of the community ought dence reinforces this point by quoting to be sedulously fostered.8 Perhaps Lord Eldon, The moment confidence uniform acceptance of the positive ceases, privilege ceases. This much is value of social work is still lacking, universally conceded. 3 In deciding Nonetheless, the large amount of gov whether privileged communication is ernment funding and the great number desirable and what obligations it imof people who avail themselves of so poses, the social work profession will cial services indicate the reliance of find it necessary to refine its priorities the community on the social work dealing with clients. profession. Privileged communication is a legal injury the relation would incur exemption granted to a professional by the disclosure of the communica group. Any member of such a group tions must be greater than the benefit functioning within his professional casuch disclosure would produce for the pacity is released from the obligation correct disposal of litigation.» This to disclose a court of law certain fourth prerequisite is essentially a bal confidences he has his keeping. This ancing of interests. It acknowledges