Privileged Communications in Kansas

Patients expect that their conversations with psychologists, psychiatrists, and doctors would be privileged, and not merely confidential. A privileged communication in Kansas is one in which the psychologist cannot disclose except in very limited circumstances under Kansas law. Disclosure of privileged communication is grounds for disciplinary action. Therefore, the psychologist must understand the nature of the privilege and when communications may be .

Kansas statute 74-5323 indicates that the communications and relationship between a psychologist and a patient are privileged in the same manner in which the attorney-client relationship is privileged. Therefore, a psychologist cannot testify in court about anything a patient told him or her and cannot disclose statements to police or another person unless there is an imminent threat of harm to oneself or another, or in another circumstance which Kansas law requires disclosure as provided in Kansas statutes 60-426.

Notwithstanding the prohibition against disclosure of communications from a patient to a psychologist, 74-5323 allows the psychologist to testify about several matters wherein privileged communications might be disclosed. Subsection b of 74-5323 allows the psychologist to testify in matters concerning adult abuse, neglect, adoption, matters concerning the welfare of children, or when the psychologist seeks advice from professional colleagues or superiors when acting on behalf of the patient.

Other professions such as professional counselors, social workers, marital therapists, addiction workers, and other professions in which members of the public disclose private thoughts, feelings, and ideas as part of mental or emotional therapy are bound by rules of confidentiality. The doctor-patient privilege in Kansas receives slightly different treatment.

Kansas statutes 60-427 is the rule of evidence that delineates when a physician or another practitioner of the healing arts in Kansas to testify in court about communications and other information gained from the doctor’s patient during medical treatment. Under Kansas law, communications between a patient and a physician are more aptly described as confidential rather than truly privileged.

Under 60-427, communications between patient and doctor are presumed confidential when made in confidence by the patient with the expectation that the communications are confidential. In other words, the doctor must hold the communications private unless an exception to the presumption applies.

In a court action, a person can claim a privilege and prevent a physician from testifying in certain circumstances. Thus, a person who is not a party to an action can object to a witness testifying about confidential communication in court if the judge rules that the communication was confidential between the patient and doctor, the communication was necessary for diagnosis or treatment, the witness holds the privilege, or that the person holding information obtained it through an intentional breach of confidence. If the judge rules that these conditions do not exist, then the person may disclose the communications and is protected by law for disclosing them.

Physicians may disclose confidential patient communications is other circumstances as well. The physician may testify about communications when the legal proceedings involve the commitment of the patient, guardianship, or conservatorship of the patient. Additionally, there is no privilege when the doctor testifies about diagnosis and treatment related to a claim that is part of the legal proceeding. The most common example of this exception is a medical malpractice lawsuit or a personal injury lawsuit.

There is no privilege for blood draws made pursuant to a warrant or by the request of a law enforcement officer or when the patient makes a disclosure to commit an unlawful act.

Understanding Privileges Helps Avoid Professional Discipline

Professional licensing defense attorney Danielle Sanger is available to consult with professional licensees regarding their legal obligations so they can avoid pitfalls that could lead to professional discipline. Call Kansas Professional Licensing Attorney Danielle Sanger today at 785-979-4353 to schedule a consultation.