2008 -- Certiorari Denied in U.S. v. Auster -- The
in the U.S. v. Auster case
(see February 11,
2008 item.) The Fifth Circuit Decision raises troubling
questions in regard to what, if anything, patents are told at
the inception of treatment about the boundaries of
confidentiality, and puts a new spotlight on the previously
unexplored implications of Footnote 12 in Jaffee.
July 18, 2008 --
Circuit upholds the privilege in the context of "garden
variety" complaints of emotional distress in
Sims v. Blot. This carefully reasoned decision
upholds the principle articulated in
Vanderbilt v. Chilmark and
February 11, 2008 --
Circuit Split results from Fifth Circuit Decision --
The Fifth Circuit has decided in
U.S. v Auster that the issuing of a "Tarasoff" warning, in
the face of a patient's knowledge that such a warning would be
issued following a threat, places the communication of the
threat to the therapist outside the privilege and therefore
makes that fact admissible in a subsequent criminal proceeding
against the patient. This takes the opposite view to
that taken in U.S. v Hayes
(Sixth Circuit) and U.S v. Chase
(Ninth Circuit). [addendum: a certiorari petition has been
2007 -- Certiorari Denied in Oberweis -- The
denied certiorari in the Oberweis case (see November 22,
2006 -- Certiorari Petition Filed in Case Raising "At Issue"
Exception -- The Supreme Court has been
asked to review a Seventh Circuit ruling which supports
the so-called "patient-litigant" exception to the Jaffee
Doe v Oberweis Dairy the Seventh Circuit held that
psychotherapy records were not protected by the Jaffee
privilege in light of a claim for ordinary mental distress.
The petition claims
that this holding is in conflict with holdings in two EEOC
cases in the Fifth Circuit.
June 13, 2006 -- Tenth Anniversary of Jaffee Decision --
The Jaffee decision, handed down June 13, 1996, has now been
on the books for 10 years. Developments in the law following Jaffee
have begun to define the "contours" of the privilege, but there is still
much to be decided. An article
in Psychiatric News (American Psychiatric Association)
addresses Jaffee's relevance today.
July 5, 2005 -- Ninth Circuit Rules that
Statement Made to Therapist outside Scheduled Session is not Privileged
Ninth Circuit has ruled in U.S. v Romo
that a statement made to a
psychotherapist in a private non-scheduled meeting (a "session?") is
"in the course of diagnosis or treatment" and is therefore not
privileged! One judge was of the opinion that such a meeting is part of the treatment relationship
and therefore a statement made in such a meeting is protected by Jaffee.
June 27, 2005 -- U.S. Supreme Court declines
to hear appeal on reporters' privilege -- Reporters Judith Miller
and Matthew Cooper refused to disclose sources to a Federal Prosecutor
and were found in civil contempt by a district court. The
judgement of the district court was sustained in a decision by the DC Circuit Court of Appeals.
In this decision the appellate court discussed the issue of a supposed
reporters' privilege in relation to the absolute Jaffee privilege, and agreed that,
if such a reporters' privilege exists, it is not
absolute. In refusing to review this decision, the Supreme
Court declined an opportunity to establish the existence of a federal
reporters' privilege despite
the existence of "shield laws" in a number of states.
March 26, 2004 -- Seventh Federal Circuit
Rejects a Federal Privilege in the "Partial Birth Abortion" Records
Case -- An Illinois Federal District Court ruled (full
text) that records of patients who underwent abortions
privileged in the Federal Courts either because the HIPAA Privacy Rule
"no preemption" provision imports Illinois state privilege law into
federal courts in Illinois or because records of such patients are
deserving of privilege protection based on the reasoning in
Jaffee. A three judge panel of the 7th Circuit has rejected both
rationales. In its decision (full text), the
panel denied Government access to the records based on the more
burden" provision of the Rules of Civil Procedure.
January 9, 2004 --
Eighth Federal Circuit
Rules on "Confrontation Clause Issue" -- A defendant convicted of
first degree murder attempted to impeach the only eye witness by
gaining access to that witness's psychotherapy records. In Newton
v. Kemna, the Eighth Federal Circuit ruled (Full Text) that the
defendant may not invoke a 6th Amendment "confrontation clause" right
to access the records because the witness's Jaffee privilege is
"absolute," i.e., not subject to case-by-case balancing. The
court also ruled that the Supreme Court's no-balancing decision in Jaffee
means that an in camera examination of the records to determine
their possible relevance is not allowed.
2003 -- U.S v. Chase Ninth Circuit Ruling on "Dangerous Patient
Exception" Reversed! -- The United States
Court of Appeals for the Ninth Circuit after an en banc
rehearing of its earlier decision in U.S.
v. Chase, has RULED (Full Text)
there is no so-called
"dangerous patient exception" to the Jaffee privilege. The
effect of this ruling is to protect the patient's communications to a
therapist from forced disclosure in open court even if the
therapist has issued a"Tarsoff-type" warning. There is now only one
circuit on record on the side of such an exception to the privilege and
there are two against such an "exception." (see below)
[Despite the new ruling, Chase's conviction was not reversed.]
21, 2002 -- Another Appellate Ruling on "Dangerous Patient Exception"
-- In the case of U.S. v. Chase, the United States Court
of Appeals for the Ninth Circuit has ruled that there is a
dangerous patient exception to the Jaffee privilege,
adopting a position opposite to that taken by the 6th Circuit in U.S. v. Hayes. In the three Appellate
rulings on this issue so far, the opinions have been: two in support of
an exception (U.S. v. Chase and U.S. v.
Glass) and one holding that that there is is no such exception
(U.S. v. Hayes). The issue in large part revolves around the meaning
and intent of the so-called "Jaffee
footnote" (footnote 19).
August 14, 2002 -- HHS Publishes Final
Privacy Rule -- Following its proposed
revisions to the HIPAA Privacy Rule, HHS published the FINAL
Privacy Rule in the Federal Register. The stringent protection for
"psychotherapy notes" based on Jaffee remains
undisturbed. The starting enforcement date for the Privacy Rule is
April 14, 2003.
April 14, 2001 -- The HHS Privacy Rule Becomes
Effective -- Despite strenuous lobbying
efforts by certain health industry participants, President
Bush decided to allow the final HHS Privacy Rule's effective date
to remain undisturbed. Therefore, the final Rule, including the
stringent protection of psychotherapy information based on the Jaffee
privilege, takes on the force of law as of April 14, 2001. The
"enforcement date" is two years later.
20, 2001 -- Widening the Privilege -- The Federal Court of Appeals
for the 9th District has ruled that communications between an
unlicensed EAP counselor and a patient are protected from compelled
disclosure by the psychotherapist-patient privilege established in Jaffee.
The Court took note of the increasing number of employees who must see
an EAP counselor as a prerequisite to entering third-party paid
psychotherapy. The Court also noted that EAP counselors frequently
receive sensitive information from patients under a presumption of
confidentiality, in the same sense that psychotherapists do. See Oleszko v. State Compensation Insurance Fund.
January 18, 2001 -- The Outer Limits!! --
In what has to be the broadest imaginable application of Jaffee,
a Lower U.S. Court has held that the federal psychotherapist-patient privilege
protects the medical records of a general practitioner simply
because the record mentions the patient's mental state. The patient did
not have a mental diagnosis, and was not in "psychotherapy." See Finley v. Johnson Oil Co.
December 28, 2000
-- HHS Final Privacy Rule Published -- The U.S. Department of
Health and Human Services publishes "Standards for Privacy of
Individually Identifiable Health Information; Final Rule" in the
Federal Register. In the light of the Supreme Court's ruling in Jaffee
v. Redmond, the Rule extends stringent protection to
"psychotherapy notes" which goes far beyond the protection extended to
all other medical information.
The final Rule (which becomes binding in April, 2003 -- changed from
February, 2003 by order of HHS, 02/26/01) makes it illegal for an
insurer to condition the sale of a policy or payment of claim on a
patient's agreement to allow disclosure of psychotherapy notes. The
fly in the ointment: a lack of clarity as to what information an
insurer will be able to demand, i.e., how the Rule will be
interpreted by those who
are charged with its enforcement -- and by the courts. This issue
will be the next battleground in the protection of genuine
confidentiality for psychotherapy.
A summary of all the Rule's provisions relating to psychotherapy notes,
as well as links to the entire Rule and information about plans for
enforcement, are HERE.
September 14, 2000 - U.S. Court of Appeals for Sixth
Circuit Holds That There Is No "Dangerous Patient" Exception to the
Jaffee Privilege -- In the case of U.S.
v Hayes a Federal Appellate Court ruled that there is no "dangerous
patient exception" to the federal psychotherapist-patient privilege. In
a powerful ruling the Court held that the so-called "Jaffee
footnote" (footnote 19) has been misunderstood to suggest that such
an exception exists. Rather, the Court held, the footnote means only
that a psychotherapist may testify without the patient's consent to prevent
imminent harm. The ruling makes plain that even if a state law creates
a "duty to warn," under which a warning may be given to avert harm,
that does NOT mean that the therapist may subsequently testify
against the patient without the patient's consent
August 18, 2000 - U.S. Court of Appeals for the 8th
Circuit Holds That a Patient "Waives" the Privilege by Placing Mental
Condition "At Issue" -- In the case of Schoffstall
v. Henderson a Federal Appellate Court ruled that a patient waives
the federal psychotherapist-patient privilege by placing her mental
state at issue in a claim. This is the first ruling at the appellate
level on this issue. Lower federal courts are divided on the issue.
See, for example, Vanderbilt v. Chilmark.
December 3, 1999 - U.S. Surgeon General Report
on Mental Health in America -- This
important document contains a chapter
on confidentiality (chapter 7) which begins with a quotation from
the Court's opinion in Jaffee. The section of the report on
disclosure to third party payers points out that current state laws
are too permissive. The report suggest as a model the very protective 1984 New Jersey statute
which prohibits disclosure of psychologist-psychotherapist information
to insurers. This statute is based on the District of Columbia 1978 Mental Health Information Law which
extends strong protection to
the patients of all psychotherapists in the District. (Federal
Employees are not protected.)
November 3, 1999 - U.S. Department of Health and Human
Services Issues Proposed Rules for the Privacy of Electronic Health
Information -- In this extremely complicated
and detailed proposal, HHS has established very special powerful
protection for "psychotherapy notes." Quoting extensively from
the Jaffee opinion, HHS proposed to make it illegal
for an insurer to sell an insurance policy in which the psychotherapy
coverage requires the patient to agree to the disclosure of
psychotherapy information. The proposed rule also makes it illegal
for an insurer to refuse to pay a claim because a patient doesn't agree
to disclosure of such information.
October 7, 1999 - President Clinton Establishes Jaffee-like
Privilege for Military Personnel under UCMJ -- President Clinton
announced that by executive order he is establishing
a psychotherapist-patient privilege for military personnel. The
privilege has several stated exceptions tailored to the needs of the
armed services. See also.
September 10, 1999 - Federal District Court Decides
that Waiver is to be Interpreted Narrowly -- A Federal District
Court decision has held that the simple fact that a patient has entered
her mental condition into issue in case does not in itself constitute a
waiver of the Jaffee privilege. Although 6 post-Jaffee
decisions have taken the opposite stand, the more recent cases seem to
by taking a more narrow view of the waiver. The "score" is now 6
to 4. [Booker v. Boston 1999 wl 734644]
August 19, 1999 - U.S. Court of Appeals for First
Circuit Establishes First Exception to New Privilege -- Following
the Supreme Court's paralleling of the Jaffee privilege with
the attorney-client privilege, the Court ruled in In Re
Grand Jury Proceedings (Gregory P. Violette). that the Jaffee
privilege is subject to a narrow "crime-fraud" exception similar to
that in the attorney-client privilege.