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Paul S. Appelbaum, M.D.
Dr. Appelbaum is A. F. Zeleznik professor and chair of the department of psychiatry at the University of Massachusetts Medical Center, 55 Lake Avenue North, Worcester, Massachusetts 01655.
Whether federal courts can and should recognize a psychotherapist-patient privilege has been an unsettled issue in American law for more than a generation. Trial courts and federal courts of appeals have split on the question, leaving all involved uncertain of the degree of protection for patients’ communications. Now the U.S. Supreme Court has resolved the matter with a powerful endorsement of the value of confidentiality in mental health treatment.
The court’s decision came in the case of Jaffee v. Redmond, a lawsuit that grew out of a death in a housing development in a Chicago suburb (1,2). Mary Lu Redmond, a police officer with the village of Hoffman Estates, had responded to a call reporting a fight in progress at an apartment complex. According to her account, she arrived to find two women in a state of some distress who reported a stabbing in one of the buildings.
After calling for an ambulance, Redmond approached the building, from which five men emerged in the midst of a dispute, one of them waving a metal pipe over his head. When they ignored her command to drop to the ground, she drew her service revolver.
What happened next was the subject of considerable dispute. Redmond claimed that two more men then ran out of the building, one chasing the other with a butcher knife. When the pursuer, ignoring Redmond’s command to drop the knife and get on the ground, raised the knife in preparation to strike, she fired a single shot, killing him. Other witnesses, however, including members of the family of the man who was shot, maintained that he was unarmed at the time and thus that Redmond’s action was unjustified. Redmond and the man who was being chased were both white; the man who was shot was black.
After the shooting, in Redmond’s words, “People came pouring out of the buildings [and] started to charge” at her, screaming and swearing. Officer Redmond used her gun to control the crowd, predominantly black, ordering them “to get back, get down, get beyond the sidewalk, get on the ground.” The standoff with the crowd of 30 to 40 people continued until another officer arrived on the scene, finding Redmond looking “somewhat bewildered,” “visibly shaken or upset or disoriented.”
Within three or four days of the shooting, Redmond consulted Karen Beyer, a licensed clinical social worker, presumably to talk about the trauma she experienced. The sessions, described in the later court opinions as “counseling,” continued up to three times a week for the next six months, about 50 sessions in all.
When the family of the dead man, having filed suit against the village and Redmond herself, learned of the sessions, they sought access to Beyer’s notes and testimony. The plaintiffs hoped to find that Redmond had contradicted her public account in her discussions with her therapist, perhaps admitting that the victim had not been armed. When Redmond and Beyer refused to release the information, the plaintiffs began a pursuit of the issue that would evenutally end before the U.S. Supreme Court.
The federal district court judge who heard the case rejected Richmond’s argument that her communications should be protected by a psychotherapist-patient privilege. Had the plaintiffs brought suit in Illinois state court instead of federal court, such a privilege would have applied. Like the other 49 states, Illinois has a statute that allows patients to deny their opponents in court access to confidential communications made in therapy. Although all privilege statutes contain a variety of exceptions, none would have been involved in Redmond’s case. Her confidentiality would have been secure.
Privilege in federal courts, however, is governed by the Federal Rules of Evidence, adopted by Congress in 1975. The judicial committee appointed to draw up the rules had recommended that Congress endorse several testimonial privileges, including one for psychotherapists and patients. Rather than get bogged down in debate over which communications deserved protection, Congress took another route. It eliminated all specific privileges from the rules, inserting instead the following provision in rule 501: “The privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”
If the members of Congress thought they were simplifying matters with this approach, subsequent events proved them mistaken. The federal courts manifested considerable confusion over whether the reference to “the principles of the common law” meant that courts could recognize only privileges that had been accepted by common law courts (rather than enacted by legislation) in the Anglo-American legal tradition. Indeed, several federal courts of appeals interpreted this language as precluding them from endorsing a psychotherapist-patient privilege, because--unlike lawyer-client or spou -s al privilege--it was not generally recognized by common law (3,4). The remaining federal circuit courts that considered the issue split between those accepting both their power to create a privilege and the wisdom of doing so “in the light of reason and experience” (5,6), and those unwilling to limit their access to data by recognizing a privilege (7,8).
It was in this context that the trial judge ordered Karen Beyer to turn over her notes and to testify about her treatment of Mary Lu Redmond. When she refused to offer more than a few pages of redacted notes and to recount briefly some of the facts Redmond had communicated to her, the judge charged the jury that they were “entitled to presume that the contents of the notes would be unfavorable” to the defendants. The jury then returned a verdict for the plaintiffs, awarding damages of $545,000. Redmond and the village appealed to the Seventh Circuit Court of Appeals, arguing in part that the trial judge had erred in not recognizing a psycho therapist-patient privilege.
The issue had never before been addressed by the Seventh Circuit. Reviewing the decisions of its sister circuits, the court found the arguments in favor of accepting the existence of a privilege more persuasive than those against. It held that in psychotherapy “the patient’s ability to communicate freely without the fear of public disclosure is the key to successful therapy.”
Nonetheless, the Seventh Circuit’s opinion refused to embrace an absolute privilege. It ruled that the trial court must examine each case to determine whether “the evidentiary need for the disclosure of a patient’s counseling sessions outweighs that patient’s privacy interests.” Only if the answer were in the negative in a particular case would the privilege apply. Performing this balancing test, the court found Redmond’s communications were privileged and remanded the case for retrial.
This time it was the plaintiffs’ turn to appeal, and the U. S. Supreme Court agreed to hear the case. Writing for a seven-member majority, Justice John Paul Stevens dealt first with the question of how to interpret the phrase “principles of the common law” in rule 501. He noted force fully that on its face the rule envisions an evolution of privileges, not necessarily limiting them to those recognized explicitly by the common-law courts. Thus courts have the power to adopt new privileges. In that light, he dealt directly with the wisdom of recognizing a psychotherapist-patient privilege per se, holding that both reason and experience militated in its favor.
Justice Stevens’ review of the basis for a psychotherapist-patient privilege was as powerful an endorsement of confidentiality in therapy as has been seen from any court. He cited the original report of the committee that drew up the proposed rules in the early 1970s, which strongly supported a privilege, and buttressed their comments with the notation that all 50 states have recognized some form of privilege for therapeutic communication. For the federal courts to refuse to recognize a privilege, Stevens wrote, “would frustrate the purpose of the state legislation” by leaving patients and therapists uncertain if testimony might nevertheless be compelled in federal court. Moreover, Stevens saw no basis for limiting the privilege to psychiatrists and psychologists when social workers often perform the same functions.
Had the court stopped here, the victory for those advocating a privilege, though real, would have been limited. The balancing test imposed by the Seventh Circuit--which clearly concerned several of the justices at oral arguments (9)--left the applicability of the privilege in any particular case uncertain. The value of confidentiality would always have to be weighed against the importance of the evidence withheld. It is of interest that Redmond’s attorney had no quarrel with the balancing test, since the Seventh Circuit had used it to his client’s advantage. But as a broader matter of jurisprudence, it was clearly problematic.
Recognizing this dilemma, the Supreme Court majority opinion parted company with the Seventh Circuit. “Making the promise of confidentiality contingent on a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege,” Stevens noted. Thus the court ruled that so long as the communications in question met the requirements for the privilege, they would be protected from disclosure, no matter how important to the case the evidence might be. Stevens declined to specify whether any limitations might later be imposed on the privilege, although he suggested in a footnote that it was likely that the privilege would not apply when there was a serious threat of harm to the patient or to others.
Jaffee v. Redmond is an important decision in two respects. First, it marks the culmination of a battle of nearly 40 years to persuade the federal courts to recognize a psychotherapist-patient privilege. The Supreme Court’s opinion did so in broad terms, applying the privilege to the three major classes of psychotherapists and refusing to let it be balanced away. Patients and former patients involved in federal litigation have strong new protection for their confidential communications. The decision ensures that the threat of compelled disclosure in federal court will no longer undercut state law guarantees of privilege.
Most litigation, however, whether civil or criminal, occurs in state courts. How is Jaffee likely to affect these cases? Privilege statutes are always under assault in the courts, because they undercut a fundamental tenet that every person’s testimony is owed to the court. State privilege laws tend to be riddled with exceptions, and courts create new ones regularly. Jaffee’s second and most significant impact may be to underscore the importance of confidentiality in therapy, thereby dissuading courts and legislatures from degrading protections further.
Jaffee also underscores the role of serendipity in the development of law. As the first case on psychotherapist-patient privilege to reach the Supreme Court, it offered the most sympathetic facts imaginable for advocates of a privilege. The patient was a police officer, traumatized in the line of duty, and exposed to civil suit by plaintiffs whose testimony the courts appeared to view as of questionable veracity. A ruling for privilege in this case was a ruling to protect the guardians of law and order and to deny a monetary reward to the family of a probable malfeaser. Would the outcome have been different if the patient had been an accused rapist, seeking to prevent the admission at trial of a confession made to his therapist? We shall never know. Proponents of a privilege, however, clearly had the odds on their side this time. (c)
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