Copyright (c) 1999, Paul W. Mosher, M.D.
DRAFT (#4 03-31-99) - This is a draft of a paper intended for pre-circulation-discussion when in final form. Please do not copy or distribute this draft without permission.
Note: An edited version of this article has been published as a chapter in the following volume (pp. 177-206):
Confidential Relationships. Psychoanalytic, Ethical, and Legal Contexts. KOGGEL, Christine M., Allannah FURLONG and Charles LEVIN (Eds. Amsterdam/New York, NY, 2003, XVI, 265 pp.
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Psychotherapist-Patient Privilege: The History and Significance of The U.S. Supreme Court's Decision in the case of Jaffee v. Redmond
by Paul W. Mosher, M.D.
"The great Truste, between Man and Man, is the Truste of Giving Counsell. For in other Confidences, Men commit the parts of life; Their lands, their Goods, their Children, their Credit, some particular affaire; But to such, as they make their Counsellors, they commit the whole: By how much the more, they are obliged to all Faith and integrity." (1)
"...there is obviously something revolting about the spectacle of a psychotherapist testifying to a patient's confidences in which the patient is the defendant..." (2)
"It is said that certain relationships are by their very nature so confidential that it would be sheer sacrilege to violate them."(3)
"...if a patient has a right to obtain [psychotherapy] services, he has a correlative right to the essential confidentiality of communication."(4)
"As asepsis is to surgery, so is confidentiality to psychiatry." (5)
In 1996, The U.S. Supreme Court established the psychotherapist-patient privilege in the Federal Courts in its Jaffee v. Redmond decision. This powerful decision was the culmination of a near half-century effort to establish the principle that communication between patients in psychotherapy and their psychotherapists are in need of a very high level of protection - protection similar to that given to the communication between lawyers and their clients.
Unfortunately, many in the legal and psychotherapy professions have not sufficiently understood the significance of the Court's decision. Commentators have erred either in interpreting the decision too narrowly or too broadly.(6) It is the purpose of this report to place Jaffee in historical perspective and thus to promote a balanced view of the decision's significance and meaning. Without a historical understanding of the origin of the new privilege established in Jaffee, it will be difficult to understand the likely evolution of this new development in the psychotherapist-patient relationship. (7) The following points will be emphasized:
1. The Jaffee-Redmond decision represents a very significant affirmation by the Supreme Court of the undisputed necessity of "absolute" confidentiality for "psychotherapy"in general and in particular for the psychoanalytic psychotherapies.
2. Despite the narrow literal reach of the decision (judicial proceedings), the ramifications of the decision extend far beyond the courtroom.
3. The Jaffee-Redmond decision is not a statement of the Court's support for "health care" privacy. In fact, the decision reaffirms the Court's awareness of a distinction between the confidentiality needs of psychotherapy patients and the privacy needs of patients receiving other forms of health care.
4. Although details of the new privilege are yet to be worked out, there is no doubt that the privilege applies to patients receiving psychoanalytic psychotherapy from psychiatrists, psychologists, and social workers.
5. The decision clearly applies to psychoanalysis and to psychoanalytic psychotherapy, the requirements of which formed the basis for the original rationale for the privilege. Other therapies which have confidentiality needs distinct from those of ordinary health care may also be included.
What is a privilege?
In the natural sciences, "truth" is determined by application of the experimental method and it is a fundamental assumption that each experimenter will report experimental results honestly. This assumption is so important that, without exception, falsification of evidence in scientific reporting is considered to be the most egregious violation of professional conduct imaginable.
In the law, the process of ascertaining "truth" is not the same. "Truth" is arrived at in a court proceeding by a judgment based on the weighing of all available evidence. Because of the importance of this most basic legal principle, it is fundamental to our system of justice that no person has the right to withhold any evidence from a court.(8), In other words, the courts have the right to "every man's evidence." (9)
It has long been recognized that the principle that no person may withhold any evidence from a court comes into conflict with society's wish to promote certain intimate or private relationships in which necessary information will be exchanged only in the absence of the threat that sometime in the future such information could be forced into public in a court proceeding.(10) Therefore the rules regarding what information must be made available to courts have been modified to create certain very limited exceptions to the principle of "every man's evidence." These exceptions are called "privileges," meaning literally "private laws" which except certain "privileged relationships" from the general rules. In general, courts and legislatures have been very hesitant to establish privileges because each such exception detracts from the "truth seeking function" of the judicial system. (11) When such a privilege is established, it is an expression of society's intention to allow an otherwise unacceptable restriction on judicial truth seeking, because a greater value is placed on the particular relationship which is protected by the privilege.(12) Some typical examples of privileges recognized by courts include the lawyer-client privilege, the spousal privilege, and the priest-penitent privilege.
Beyond the value assigned to a particular class of relationships, the establishment of privileges has been seen by some commentators to be an essential component of human freedom in a free society because privilege laws regulate the power of the state to compel disclosure of confidential information by individual citizens.(13) (14) Additionally, some commentators have argued that privileges, rather than detracting from truth-finding, promote an increase in the ascertainment of truth because they may diminish the likelihood that a person who feels morally bound to keep silent will be forced to commit perjury in a court or other setting. This view is highly respected in European courts where the proclivity to compel witnesses to testify against their will is much weaker than in the United States.
Privileges may be established through either a series of court decisions (common law) or the action of legislative bodies. Once established, privileges become part of the "rules of evidence" and there are distinct and varying sets of such rules in each of the States and in the Federal Courts. Thus, in the Federal Courts privileges are a part of the Federal Rules of Evidence (FREs's).
Privileges in professional relationships are related to, but not the same as, the ethical obligations of certain professionals to maintain confidentiality of their relationships with clients or patients. However, because the existence of such an ethical obligation is often used as evidence of the necessity of a privilege, privileges and confidentiality are often seen to be intimately related.(15)
The Effects of Privileges Extend Far Beyond the Courtroom
In the narrowest technical sense, a privilege affects only the issue of whether confidential information may be subject to compelled disclosure in a court proceeding.(16) It is not correct, however, to say that the effect of privileges is limited to such situations.(17) Unlike other rules of evidence, privilege rules extend their effect to the behavior of citizens, and to the arrangements that citizens make, outside the courtroom, in a variety of settings.(18) Thus, for example, attorneys regularly refuse to divulge information(19) about clients in non-judicial contexts because the information is "privileged" and laws regulating the relationship between clients and attorneys may exclude "information which falls within the attorney-client privilege" from disclosure in non-judicial settings such as government audits.(20)
During the House of Representatives hearings on the proposed Rules of Evidence in 1972 the importance of privilege rules in the regulation of relationships outside the courtroom was discussed at length. In testimony, Justice Arthur Goldberg said, "The privileges which are involved here are designed to protect interpersonal relations which may never reach a courtroom. They may emerge in many other contexts . . . " (Proposed Rules of Evidence, 1973, p. 144) (21)
Specifically the effects outside the courtroom of the psychotherapist-patient privilege have been recognized, as well. The effects are thought to promote openness within the relationship(22) and reciprocally to reinforce the commitment of the therapist to the ethical principle of confidentiality outside the relationship.(23)
Privilege Rules Create Complications
A privilege may be qualified, that is, subject to certain additional rules which limit the situations to which the privilege applies. Two classes of qualifications which are important in understanding of Jaffee are exceptions and balancing tests. Privileges may also be undone by waivers.
Exceptions are specific rules which spell out situations in which the privilege does not apply. For example, the lawyer-client privilege does not apply in a situation in which a client has consulted an attorney for the purpose of planning to commit a crime. Even though every privilege has one or more such exceptions, the term "absolute privilege" is often used to describe a privilege in which a specific set of narrowly described exceptions expresses the only ways in which the privilege can be set aside. (Amann & Imwinkelreid, 1997, p. 1021)
A "balancing test" is a qualification of a privilege which can weaken it considerably. In applying such a test, a judge may decide on a case-by-case basis whether the need for the evidence in the particular case at hand outweighs the individual's interest in retaining the privileged information. The lawyer-client privilege is not subject to such a balancing test, but the so called "executive privilege" of the President is subject to case-by-case balancing by the Court and is therefore considerably weaker. (Swidler, 1998; U.S. v. Nixon, 1974) Thus the lawyer-client privilege is often described as "absolute" while the executive privilege is not.
A "waiver" is a voluntary giving up of the privilege by the protected person or an inadvertent surrender which can occur as the result of the action of either party to the protected relationship. For example, the client, not the attorney, is the holder of the privilege in the attorney-client relationship. Therefore the client may "waive" the privilege, i.e., give the attorney permission to disclose the protected information in court, or elsewhere. An involuntary waiver of the protection of related information may occur if, even in error, some protected information from a relationship is released. Courts have varied widely in the extent to which they have insisted on this principle.(Imwinkelreid, 1999) The issue here is said to be one of fairness, that is, one cannot selectively use favorable information from a protected relationship while seeking to conceal unfavorable information by invoking a privilege. (Marcus, 1986)
An additional basis for challenging a privilege arises when the privilege prevents a criminal defendant from exercising his or her Sixth Amendment constitutional right to confront an accuser and thus creates the need to balance the rights of the accused against the rights of the accuser. This "Confrontation Clause" argument has been used with varying success to challenge privilege claims. (Smith, 1980, p. 55; Courville, 1998)(24)
As a result of the complicated and controversial nature of privilege rules, these rules are frequently the basis of disputes. The fact that such cases are common does not indicate that the core protections in the privilege rules are in doubt: it simply means that the application of the rules "at the edges" is constantly being argued and thus the "contours" of the privileges are given shape.
The Physician-Patient Privilege
Because information disclosed by a patient to a physician in the course of obtaining medical care is often of a very private nature, physicians and some legal scholars have argued that society would be served by the establishment of a "physician-patient" privilege. In fact, many states have enacted some form of a physician-patient privilege, although no such privilege exists in Alabama, Connecticut, Florida, Georgia, Kentucky, Maryland, Massachusetts, New Mexico, South Carolina, Tennessee, and West Virginia. (Slovenko 1998, p. 22, note 4.) Because of the potential for misuse of such a privilege, the large number of exceptions in the widely varying rules of those states which do have the privilege is held by many authorities to render the "privilege" essentially meaningless. (Slovenko, 1998, pp. 16-34) Furthermore, as will be shown, no such "medical privilege" currently exists, or is likely to exist, in Federal Courts.
In an authoritative explication of the conditions under which a privilege could be justified, Professor John H. Wigmore laid out a time-honored test which consists for four questions all of which must be answered in the affirmative to justify the privilege:
(1) Does the communication originate in a confidence? (2) Is the inviolability of that confidence vital to the achievement of the purpose of the relationship? (3) Is the relation one that should be fostered? (4) Is the expected injury to the relation, through the fear of later disclosure, greater than the expected benefit to justice in obtaining the testimony? (Note, 1952)
Dean Wigmore applied these criteria to the physician-patient relationship and reached the conclusion that there could be little justification for a "medical privilege." His conclusion has been generally accepted by legal scholars. (Note 1952, Slovenko, 1960, p. 179, Slovenko 1998, p. 18) On the basis of Wigmore's long honored and respected analysis, and the generally sieve-like privilege in those states where a medical privilege does exist, it has been almost a certainty that such a privilege will not be created in the Federal Courts. This fact should not be interpreted to mean that the Federal Courts do not hold privacy in the doctor-patient encounter to be an important societal value. In fact the Supreme Court has supported the idea of medical privacy.(25) (Whalen v. Roe, 1977, Smith, 1986, p. 495) However, the federal courts have simply recognized that the needs for testimony are not outweighed by the need for medical privacy, and thus have in effect acknowledged that the need for privacy for ordinary "health care" is at a lower order of priority than, for example, the priest-penitent relationship, or the lawyer-client relationship.(26)
The Practice of Psychiatry, Psychotherapy and Counseling in the 1950's
Because the psychotherapist-patient privilege appeared in the 1950's, it is important to understand the relevant historical context; terminology which is used in much of the subsequent writing on the subject reflects 1950's usage.
In the 1950's psychiatrists in the U.S. generally fell into two groups, those who practiced psychotherapy for the most part, and a larger group who concentrated on "somatic" (physical) therapies, often referred to as "neuropsychiatrists."(27) Furthermore, almost all psychotherapy in the U.S. was practiced by certain psychiatrists and a smaller number of psychologists; it was only later that the enormous expansion of the psychotherapy field brought in many psychologists and social workers.(28) Beyond that, it is important to realize that, unlike the situation in the 1990's, psychotherapy in the 1950's was comprised almost exclusively of classical psychoanalysis and a less intensive form of psychotherapy based on the psychoanalytic approach known variously as "psychoanalytic psychotherapy," "psychoanalytically oriented psychotherapy," "psychodynamic or dynamic psychotherapy(29)," or just "psychotherapy."(30)
So while it is generally the case today in the mental health professions that the term "psychotherapy" refers to a wide variety of nonphysical methods of treating a person with a mental disorder, in the 1950's the term "psychotherapy" usually referred to treatment which was being carried out using "psychoanalytic principles."(31) It is the very unusual relationship upon which such treatment is based which led to the idea that "psychotherapy" was somehow different from "health care" and that a privilege for the psychotherapy patient was a necessity in order for the relationship to exist. (Slovenko, 1960)(32)
Courts and legal scholars have recognized that professionals and others engage in helpful verbal interactions with clients which do not fit the definition of psychotherapy for which a privilege was being considered. Thus, legal writers, until recently, differentiated "psychotherapy," (which mental health professionals would call "intensive psychotherapy") from "counseling" (which for mental health professionals might be referred to as "supportive psychotherapy," some forms of "short term therapy," "behavior therapy," etc.)(33) This distinction is supported by authoritative texts for general physicians, as well.(34)
An additional complication came to light in the 1950's. Although 36 states had enacted physician-patient privilege laws of widely varying scope and wording, in at least 13 of these states the wording of the laws appeared to cast serious doubt on whether they applied to the situation of a physician providing only psychotherapy!(35) Furthermore, while the privilege of patients of psychiatrists providing psychotherapy was in very serious doubt, twelve states had enacted a "psychologist-client" privilege which generally extended the same protection to clients of psychologists as applied to legal clients. (Zenoff, 1962)
Although the psychotherapy "turf" was being disputed throughout the 1950's by psychologists and others,(36) the original term for the "psychotherapist-patient privilege" was the "psychiatrist-patient privilege" because in the 1950's basically only psychiatrists were engaged in the practice of psychotherapy. There was never an indication that this privilege was proposed because of some special characteristics of mental patients or because of some other aspect of psychiatric practice and there is no indication that there would have been any suggestion for a differentiation of "psychotherapy" from medical care had it not been for the special nature of the therapist-patient relationship in psychoanalytic treatment. (Fisher, 1964, p. 616).
Special Nature of the Relationship Between a Psychoanalytic Psychotherapist and a Patient
Psychoanalysis brought to the study of mental disorders the concepts that these disorders were rooted in early (childhood) experiences, that the memories of these experiences and the emotions associated with those memories were often not conscious, and that the treatment of the disorders required the uncovering of these experiences, memories and emotions. It is important to understand that this viewpoint is quite different from the view of "neuropsychiatry" which might take the "cause" of an illness to be some disturbance in the "brain" in the present.
As described by Freud and subsequent authorities, the patient in psychoanalytic treatment is instructed to engage in a very unusual mode of communication with the therapist which is described by the "fundamental rule" of psychoanalysis. This rule states simply that the patient must, to the best of her ability, try to speak out loud to the analyst every thought which comes to mind without regard to rationality, relevance, propriety, or obligations to others to maintain secrecy. Called "free association,"(37) this technique allows the analyst to establish a set of connections among various "mental contents" which may not be obvious to the patient.(38) The resulting unveiling of every inner thought is a "technical" necessity for the treatment to succeed and it can take place only in an atmosphere of complete trust.(39) Rationales for a privilege for psychotherapy patients allude to this special mode of communication, and the complete trust which it requires, as the basis for the privilege, even though many commentators in the 1950's did not specifically mention psychoanalysis -- probably because, as noted above, the terms psychotherapy and psychoanalytic therapy were virtually synonymous in that era.(40)
Psychoanalysts have recognized the hazards of disclosure of the information which they obtain in the treatment of their patients, and it has been long-recognized in the legal world that many psychoanalysts and, to some extent other psychotherapists, keep no written records of their patients' communications to them. (41) As the trend toward the loss of confidentiality throughout health care has accelerated recently, the American Psychoanalytic Association has explicitly recommended (practice guideline, "Charting Psychoanalysis") to its members that no written record should be kept of daily sessions. (42) The profession currently holds that such records are not needed for good psychoanalytic care despite assertions to the contrary in earlier times.(e.g., Saul, 1938). The existence of this American Psychoanalytic Association practice guideline (not yet, but on its way to becoming a standard of care) specifically differentiates psychoanalytic practitioners from other groups of psychotherapists who have less stringent confidentiality concerns as reflected in less stringent standards.(43)
It is very important, however, to be aware of the way in which the evolution of support for the privilege is intertwined with a confidential-psychoanalytic-confessional model of psychotherapy based on "free association." Over the decades that the privilege has gained acceptance, the field of psychotherapy has changed; many therapists now practice forms of "psychotherapy" which arguably do not fit within the same set of criteria upon which the privilege is based and might better be called "supportive therapy" or "mental health counseling."(44) On theoretical grounds, some current forms of mental health treatment, such as behavioral methods, specifically and explicitly disclaim any interest in "the mind" or other internal subjective constructs. (45) Furthermore, there are many psychiatrists who practice little psychotherapy at all. This fact, which has only started to gain recognition among legal commentators,(46) is certain to become the cause of future disagreements about the scope of the psychotherapist-patient privilege and is discussed below.
Origins of the Proposal for a Psychotherapist-Patient Privilege
The concept of a psychotherapist-patient privilege was born of the realization that the relationship between a physician and a patient on the one hand, and the relationship between a psychotherapist and a patient on the other, are fundamentally different when the method of psychotherapy employs techniques derived, in a general sense, from the psychoanalytic method of encouraging disclosure of all thoughts without restraint.
In the landmark 1952 Illinois case, Binder v. Ruvell, a prominent psychiatrist, Dr. Roy Grinker, refused to testify in a case in which information about a patient of his, not actually a party to the case, was sought by one side in an Illinois court. In that case, and despite the fact that Illinois had no physician-patient privilege, Judge Harry M. Fisher ruled that the information given by a patient to a psychiatrist practicing psychotherapy was protected from disclosure. "The [relationship between the psychiatrist and his patient]" said the judge, "is unique and is not at all similar to the relationship between physician and patient."(47) The opinion of the Court made reference to a clearly Freudian model of psychotherapy. In both the brief submitted by the psychiatrist and the decision of the court, the similarity of the psychotherapist-patient relationship and the confessional nature of the priest-penitent relationship was noted.(48) (Note, 1952, footnote 17) Furthermore, Judge Fisher analyzed the new privilege in terms of the four elements proposed by Wigmore to justify privileges and concluded that Wigmore's criteria were met.
Binder v. Ruvell is the first significant judicial recognition of a need for different standards of confidentiality for "psychotherapy" and "medical care" and is thus marks the point at which legal thought on these two issues began to diverge. It is perhaps no coincidence that this development occurred only two years after the director of the Federal Bureau of Investigation (Hoover, 1950) published a widely noted opinion piece in a leading medical journal asking physicians, in effect, to report subversive activity to the government, an initiative protested by the American Psychoanalytic Association and the American Psychiatric Association. (Slovenko, 1958, p. 49) Over the ensuing 50 years, there has been a gradual erosion of the confidentiality of ordinary health care information as health care has become more complex and bureaucratized.(49) On the other hand, society's awareness of the need to safeguard information generated in psychotherapeutic relationships has increased.(50) Commentators have appreciated that the inability or unwillingness in some circles to differentiate certain "psychotherapy" from ordinary medical care had led to a failure to provide the special protection that certain forms of psychotherapy require.(51)
In a widely cited authoritative book on the subject, "Psychiatry and the Law" (Guttmacher & Weihoffen, 1952) the authors argued that on policy grounds the "psychiatric patient" had a special need for protection. The basis of that assertion was that the patient in "psychotherapy" was required to disclose to the doctor his "deepest and most secret thoughts and feelings."
In explaining the need for a privilege for "psychiatric patients" the authors of that text were clearly speaking of psychoanalysis or psychoanalytic psychotherapy(52):
The psychiatrist must insist on very personal data, and must explore the relationship of the patient's acts to his basic drives, which can only be adequately revealed by his deepest and most secret thoughts and feelings. This is true not only in psychoanalysis but in all psychotherapy. [i.e., psychoanalytic psychotherapy] The possibly neurotic nature of even such patently criminal acts as forgery or theft cannot be determined without exploring their patient's attitudes and behavior in regard to masturbation, homosexuality, etc.
What is more, the patient's statements may reveal to his therapist much more than the patient intends or realizes. The psychiatric patient confides much more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition. It is extremely hard for them to bring themselves to the point where they are willing to expose the dark recesses of their mind to the psychiatrist; often patients have undergone therapy for a year or more before they begin to reveal anything significant. It would be too much to expect them to do so if they knew that all they say - and all that the psychiatrist learns from what they say - may be revealed to the whole world from a witness stand. (Guttmacher & Weihoffen, 1952, p. 272) (53)
During the subsequent 1950's the idea that a patient in such a situation needed special protection took hold, and the concept of a "psychiatrist-patient" privilege was under active discussion. (Perkins et. al., 1954; Stern, 1958; Hollender, 1960)
In 1960, an influential law review article, in a detailed fleshing out of the decision in Binder v. Ruvell, argued that unlike the ordinary health care situation, the psychiatrist's (i.e., psychotherapist's) relationship with his patient fully satisfies the criteria of Dean Wigmore. (Slovenko, 1960) The article made reference to "the fundamental rule," (54) "speaking every thought," and quoted a judge who said, ". . . Psychotherapy by its very nature is worthless unless the patient feels assured from the outset that whatever he may say will forever be kept confidential . . . " The article concluded:
"The following is by way of recommendation: "The confidential relations and communication between psychiatrist and patient in a treatment relationship is absolutely privileged, subject to express waiver by the patient, and upon his death, when waiver can fairly be presumed.'" (Slovenko, 1960, p. 203)(55)
In this article, Professor Slovenko reversed a view expressed two years earlier in which he had supported a balancing approach to the "medical" privilege as a recognition of the general predisposition of courts to avoid extending privileges. (Slovenko, 1958) In 1960, he said "From the view point of the psychiatrist, it is important to assure patients that the confidentiality of their relations with their psychiatrist is absolute, and not subject to exception at the discretion of the judge." (Slovenko, 1960, p. 198).
In that same year, 1960, the Group for the Advancement of Psychiatry (GAP) issued a report entitled "Confidentiality and Privileged Communication in the Practice of Psychiatry." The GAP report included this frequently quoted passage:
"Among physicians, the psychiatrist has a special need to maintain confidentiality. His capacity to help his patients is completely dependent upon their willingness and ability to talk freely. This makes it difficult if not impossible for him to function without being able to assure his patients of confidentiality and, indeed, privileged communication . . . There is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment. The relationship may well be likened to that of the priest-penitent or the lawyer-client. Psychiatrists not only explore the very depths of their patients' conscious, but their unconscious feelings and attitudes as well. Therapeutic effectiveness necessitates going beyond a patient's awareness and, in order to do this, it must be possible to communicate freely. A threat to secrecy blocks successful treatment."(GAP, 1960, p. 92)
The report took note of the fact that there was no privilege for physicians in several states and further pointed out the paradox that several states had a privilege for psychologists' clients but not for the patients of psychiatrist-psychotherapists. It concluded with a proposed model statute which simply read:
The confidential relationship and communication between psychiatrist and patient shall be placed on the same basis as regards privilege, as provided by law between attorney and client. (GAP, 1960, p. 112)
Despite its elegant simplicity, the GAP proposal fell short in the eyes of legal scholars and psychoanalysts. In particular, criticism was leveled at the fact that it would be impossible, under such a law, to specify what a "psychiatrist" is because such practitioners are licensed as "physicians" without any legal recognition of their specialty status. In addition, several differences between kinds of exceptions which might make sense in the lawyer-client and the psychiatrist-patient relationship were recognized. (56) Consequently, in the State of Connecticut, a committee was formed under the auspices of the Connecticut District Branch of the American Psychiatric Association and Connecticut Mental Health Association. This committee included members of the District Branch as well as lawyers from the community and legal scholars from Yale Law School. This committee's work resulted in the enactment of a "psychiatrist-patient" privilege statute in Connecticut. (Goldstein & Katz, 1962) The Connecticut law forms the basis of the Supreme Court's later proposal for a psychotherapist-patient privilege.
Notable in the Connecticut statute is that it applies in "civil and criminal cases, in proceedings preliminary thereto, and in legislative and administrative proceedings. . ." The privilege covered communication of patients to psychiatrists and also communications between patients and persons working under the "supervision of the psychiatrist" including psychologists and social workers; it did not protect psychotherapy patients of psychologists who were being seen by the psychologist in an independent practice. The law spelled out three specific exceptions to the privilege: (1) proceedings to hospitalize a patient, (2) court ordered psychiatric examinations, and (3) a balancing test where, in a civil proceeding, a patient has introduced his mental condition into a case. After the enactment of the Connecticut law, GAP withdrew its earlier proposal and substituted the new law as a "better model." (Slovenko, 1998, p. 68, note 7) Subsequently, several states enacted similar laws. (See below.)
In 1961, an Advisory Committee to the Supreme Court recommended that the Court formulate rules of evidence for the federal courts. A draft of proposed FREs was submitted in 1969 including Article V, "Privileges ." Article V proposed nine privileges, among which was rule 504, a psychotherapist-patient privilege closely modeled on the Connecticut Law and the new GAP model statute. Rule 504 referred to a "psychotherapist" rather than a psychiatrist, and the Rule defined the practitioner covered by the privilege in terms of both professional license and function: a "psychotherapist" was a licensed physician or psychologist engaged in the "diagnosis or treatment of a mental or emotional condition, including drug addiction." Exceptions to the privilege in Rule 504 were essentially the same as those in the GAP/Connecticut law.
The accompanying Advisory Committee Note explained the fact that no privilege would be proposed for the "physician-patient relationship."(57)
In 1972, the proposed new FREs were submitted by the Supreme Court to Congress for approval. Unexpectedly, the proposed FREs, and particularly Article V dealing with privileges, got caught up in a political firestorm related to the Watergate scandal. (Imwinkelreid, 1994) Full-blown hearings took place in both the House and Senate. Testimony for and against proposed rule 504 was heard; significantly proposed rule 504 was opposed by both the American Medical Association and the American Bar Association. The most controversial proposed rule, however, had to do with the Watergate-related rule 509 which created a broad "government privilege."
Ultimately, Congress decided to eliminate all the proposed privileges, including rule 504, from the FREs and to substitute instead a new single rule, Rule 501, which uniformly applies to both criminal and civil cases.(58) This rule in effect sent the issue of specific privileges back to the Courts and held that the Courts should develop privilege rules in "the light of reason and experience," the process by which the common law ordinarily evolves.
Rationale for a Psychotherapist-Patient Privilege
Several justifications have been offered as the underlying justification for the psychotherapist-patient privilege. The most significant are the "utilitarian" (also called "instrumental" or "classical") basis and the "privacy" (also called "humanistic,""autonomy"or "modern") basis.(59) (Harvard Law Review Association, 1985, p. 1542) "The traditional utilitarian justification for the psychotherapist-patient privilege derives from an essentially Freudian model of psychoanalysis." (Id., p. 1542) This justification holds that a patient either will refuse to seek treatment, or will refuse to "free associate" (fully disclose) once in treatment unless secrecy is guaranteed. In other words, without the privilege the treatment cannot take place, and the sought after evidence will not come into existence. (60) Thus, the loss of evidence in the truth-seeking process caused by the privilege is minimal.
Other commentators have held that the privilege is essentially a "privacy" issue, that is, disclosure of sensitive information revealed by the patient in the course of psychotherapy would be an invasion of the patient's "privacy rights"(Id., p. 1545) or constitutional (61) "privacy interest." (Smith, 1980, Smith, 1986, p. 495, Courville, 1998. P. 203) The distinction between these approaches is important because the utilitarian basis tends to narrow the scope of the privilege to psychoanalytic therapies requiring "free association" while the privacy basis tends to expand the range of psychotherapy treatment modalities covered to include any treatment in which very sensitive information is disclosed. It is much more difficult to distinguish the supposed privacy justification for psychotherapy not based on "free association" from the non-privileged (federal) privacy needs of the physician-patient relationship. Furthermore, advocates of the "privacy" rationale have had difficulty specifying a "bright line" which could differentiate those helping relationships in which a privilege is supportable from the vast number of other such psychotherapy-like relationships in which such a privilege could not be supported because of the judicial system's concerns about the loss of evidence. Thus, advocates of the privacy basis are, in effect, forced to fall back on what again becomes a utilitarian rationale.(62) In any case, as will be seen, the new privilege which has been created is based on the utilitarian justification.
Both rationales are seen by commentators as having particular strengths and weaknesses. The utilitarian rationale gains strength from the ability of courts to so define the privilege as to avoid case-by-case balancing which would severely weaken the privilege (63). (Jaffee, 1996). On the other hand, the utilitarian basis is subject to empirical testing, i.e., can it be shown that strict confidentiality is really essential for the relationship? Such tests have yielded weak or inconclusive or mixed results. (Courville, 1998, p. 197). However, the passages quoted above well illustrate that the predominant view among professionals is that confidentiality is indispensable to the conduct of at least some forms of psychotherapy.(64) The privacy rationale, being based on a predicated constitutional right would not be subject to such empirical testing. On the other hand, case-by-case balancing against other judicial considerations, such as a "compelling state interest" in obtaining the information would seriously weaken a privacy based privilege. (Whalen, 1974; Courville, 1998, p. 212)
The Supreme Court Has Been Particularly Hesitant to Create New Privileges
From the time that President Ford signed the legislation containing the new FREs on January 3, 1975 until the 1990's, the federal courts have been very hesitant to create new privileges. The Supreme Court recognized the existence of only the lawyer-client privilege and the spousal privilege. Some federal courts held that the intent of Rule 501 was actually to prevent the development of any new privileges beyond the ones which existed in common law prior to 1975. The Supreme Court declined to create an academic privilege, a reporter's privilege, an accountant's privilege, or a state legislator's privilege. This very strict interpretation of rule 501 has been in accord with the conservative position asserted by Justice Frankfurter.(65) Therefore, the creation of a new privilege is not only unusual; it signifies a very notable recognition by the Supreme Court of a most important societal need. (66)
Psychotherapist-patient privilege cases have arisen in several federal districts since 1975 and have been decided with varying results, mostly in the negative.(67) However, at the state level, all fifty states have recognized (mostly through legislation) the privilege but with widely varying wording.(68)
Thus the status of a Federal psychotherapist-patient privilege, and whether such a privilege should be recognized under rule 501, was uncertain when the Supreme Court accepted Jaffee v. Redmond in 1995. The specific issues in the case were (1) should a psychotherapist-patient privilege be recognized in the federal courts and (2) if so, should the privilege be extended to apply to the psychotherapy patients of social workers? Details of the facts in the case have been described elsewhere. (Amann & Imwinkelreid, 1997; Klein, 1998)
The Supreme Court Creates the Psychotherapist-Patient Privilege
To the surprise of both participants in the case and legal experts, in a very powerful seven to two decision, the Court ruled that the communication of a psychotherapist-patient relationship is privileged under rule 501. The Court further ruled that the privilege should extend beyond the patients of psychiatrists and psychologists and should also include the patients of social workers. (Jaffee v. Redmond, 1996) Several important aspects of the Court's decision are worthy of comment.
The majority opinion sustained the decision of the appellate court in holding that the information in the psychotherapist-patient relationship is protected by a new privilege. However, the majority disagreed strongly with the appellate court in holding that the new privilege was not subject to a balancing test and is therefore absolute in the same sense that the lawyer-client privilege is so described.
The majority opinion makes no direct reference to "psychoanalysis" or to "psychoanalytic psychotherapy," referring instead only to the generic terms "psychotherapy" and "psychotherapist." However, the Court's awareness that all psychotherapy may not be within the scope of the privilege is signaled by the opening sentence of Justice Scalia's dissenting opinion which refers specifically to "psychoanalytic counseling." (69) It is also of note that the briefs submitted to the Supreme Court by the petitioner in Jaffee attempted to argue that the patient, Officer Redmond, was not receiving "psychoanalysis" and on that basis was not entitled to the privilege.(70) In the reply brief submitted by the petitioner, the argument was advanced that "The Record Fails to Show that Respondent Received 'Psychoanalytic Psychotherapy.'"' (Flaxman, 1996)
In the appellate court's explanation of its support for the privilege, weight is given to both traditional justifications for the privilege: the utilitarian/instrumental and the privacy rationales. However, in the Supreme Court's majority opinion, the court rested squarely on the utilitarian/instrumental basis. (71) (Amann & Imwinkelreid, 1997, p. 731;) and virtually ignored the privacy justification, other than to comment on the appellate court's juxtaposition of the privacy considerations with the balancing need for evidence. (Courville, Id., p. 210)
Reaction to Jaffee in the legal community has been decidedly mixed. Critical commentators particularly faulted the Court's reliance on the fact that the existence of a psychotherapist privilege in each of the 50 states, because these privileges had been created by state legislatures rather than by decisions in state courts. The critics pointed to the requirement, under Rule 501, that new privileges should evolve as a matter of common law.(72) Other commentators tried to assure the legal profession that Jaffee was not a signal that the Court was ready to create additional new privileges.(73) Others suggested that Jaffee indicates the Courts willingness to create additional Federal privileges under Rule 501 such as a parent-child privilege or even an accountant-client privilege.(Ricafort, 1998; Molony, 1998) Commentators who had for years held a skeptical attitude toward the privilege, viewed the decision in that same skeptical light implying that it changed nothing. (Slovenko, 1997) (74)
Questions Raised by the Jaffee Decision
Unlike other well-known privileges such as the attorney-client and spousal privileges, the psychotherapist-patient is of relatively recent origin and lacks the thorough analysis and understanding which would accompany privileges with hundreds of years of cultural history.(75)
Privilege rules are the subject of intense debate and it comes as no surprise that commentators have claimed that the court's decision in Jaffee raises more questions than it answers. (Josephson, 1998) In considering these questions, however, one should not lose sight of the fact that the question which was answered with great clarity by the court is that question regarding whether psychotherapy which requires the kind of disclosure to the therapist which is essential in psychoanalytic treatment will be privileged; that question was answered in the affirmative. Undoubtedly, a torrent of opinion will be heard in law review articles and court decisions centered around questions which have to do with the unresolved "contours" of the privilege. The fact that this debate is taking place should not distract from the reasonable certainty of the privilege's application in psychoanalysis and psychoanalytic psychotherapy, modalities which are clearly within the privilege when practiced by psychiatrists, psychologists, and social workers.
However, the lack of clarity in specifying which types of treatment are to be considered to be "psychotherapy" severely undermines the Court's stated intention of creating a privilege which will be "predictable" for patients, i.e., to provide that a patient in other forms of "psychotherapy" or "counseling" will know in advance that utterances to her therapist/counselor are within or outside the privilege.(76)
Of course, the most significant question raised by the court's decision is the scope of the privilege. In addressing this matter, some commentators have pointed to footnote 19 of the Court's majority opinion(77) as if to suggest that the court somehow intends that the privilege should be diluted and/or weakened by future developments. However, it should be remembered that unlike Proposed Federal Rule 504, which included three specific exceptions, the privilege established by the court under rule 501 presently has no exceptions at all. It is clearly the court's intention that the exceptions and scope of the privilege should be determined in the same way that the privilege, itself, was established, i.e., under rule 501's concept of "reason and experience."(78) The court, however, has tended to view proposed Rule 504, itself, as a significant part of the "experience" in this matter and therefore it is the belief of some legal scholars that the exceptions to the privilege which the Court will be prepared to sustain will be similar to those actually spelled out in rule 504, with the possible addition of a child-abuse reporting provision now supported in some form in all 50 states. (Jordan, 1984; Imwinkelried, 1998, Klein 1998, p. 722). (79) Nevertheless, the statement in footnote 19 of the majority opinion that: "... we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist" anticipates possible support for a "duty to protect" exception according to some commentators.(80),(81)
A second question not answered by the decision, and one which has been alluded to throughout this article, is the need to define the part of the spectrum of "psychotherapies" to which the privilege actually applies. From the earliest days in which the need for a "psychotherapist" privilege has been recognized, the utilitarian justification has stressed the special considerations which apply to and derive from the special theoretical and technical aspects of Freudian psychoanalysis. (unconscious, free association, need for "complete trust," etc.). However, since the early 1950's, when the privilege was first proposed, the general usage of the terms "psychotherapy" and "psychotherapist" has changed greatly.(82) No longer the dominant paradigm among non-physical methods of treating mental disorders in the U.S., psychoanalytic treatment is now a very influential but minority subset of a much larger "industry." Furthermore, many of the newer forms of mental health counseling, particularly those influenced by behaviorist schools of psychology, such as "behavior therapy," and to a lesser extent "cognitive-behavior" therapy, explicitly disavow the importance of the unconscious, childhood experience, and uncovering of lost memories. Therefore, although these therapies may deal with highly personal and potentially embarrassing material from a patient's current life, it is difficult to support the instrumental justification for a privilege in these treatments in the same sense that it is difficult to support a broad "medical privilege" for health care in general, which often deals with the same kind of sensitive matters. (83)
As noted above, one approach to this dilemma, i.e., the differentiation of "psychotherapy" from "counseling," provided a way to distinguish that kind of interaction which would generate information within the privilege from that which would not.(Allred, 1976) However, the clear waters of Allred have been seriously muddied by a recent confusion of terminology which has crept into the legal literature and which now treats the two terms as either functionally synonymous, or treats the term "psychotherapy" as a subset of a larger set of interactions generally called "counseling." (84) The entangling of these terms has been immeasurably heightened by the Jaffee court because the majority opinion, while explicitly addressing the issue of a psychotherapist-patient privilege(85), repeatedly (six times) refers to the interaction as "counseling sessions" when clearly intending to refer to "psychotherapy!" In his dissent, Justice Scalia used the term "counseling" in the following phrases: "psychoanalytic counseling," "psychotherapeutic counseling," (two instances) and "psychological counseling"(two instances.) The extension of the privilege by the Court to include social workers, and the use of the term "counseling" could support a rationale for an expansion of the privilege to unacceptable bounds.(86) This issue is further complicated by the fact that a small sub-segment of the counseling profession actually employs psychoanalytic methodology in its approach using a technique which is, in fact, called "Psychoanalytic Counseling." (Patton & Meara, 1992, Patton et. al, 1997).
Organizations of professional counselors have not hesitated to take a cue from Jaffee to advocate, not only for a privilege extended to "counselors," but also for extension of third party reimbursement for "counseling sessions" with their members. (87) Extension of the privilege to the patients of all currently licensed mental health practitioners would not even come close to recognizing a privilege as wide spread as the lawyer-client privilege. Thus, even a very broad expansion of the privilege would not contribute a comparable loss of potential evidence as caused by the lawyer-client privilege in a nation with so many more lawyers than psychotherapists.(88) Earlier commentators have been concerned that expansion of privileges could lead to calls for their total abolition. (Saltzburg, 1980, p. 602).
Additionally, while most psychoanalysts steadfastly refuse to discuss or disclose identifiable information about their work with patients outside of the treatment situation itself (and the very limited ambit of professional consultation), most treatment of mental illness today is conducted with a great deal of public disclosure by other therapists. In particular, counseling or "treatment" carried out under so-called "managed care" requires frequent discussion of the patient's material with a "case manager" who usually is not a professional colleague governed by the same ethical confidentiality constraints as the counselor or therapist, and who may enter sensitive information into networked computer systems.(89) Patients and counselors working in the managed care environment (85% of all employment based third-party reimbursed "behavioral healthcare" care in 1998) are clearly aware that this disclosure is taking place. Furthermore, to a very large extent, the counseling conducted under managed care programs fails to resemble the "psychotherapy" upon which the utilitarian justification in Jaffee is based.(90)
Therefore a serious question arises as to whether counseling/treatment conducted under such conditions falls within the privilege because such a relationship fails to satisfy Wigmore's first two criteria.(91) The fact that the managed care counseling relationship is not, as a regular matter, conducted confidentially creates a powerful argument that such a relationship cannot be within the privilege. Complicating this question is the patient's knowledge of the extent of disclosure at the time the therapy takes place. Once could argue that an after-the-fact determination of the classification of the patient's psychotherapy would be contrary to the Court's intention that the privilege should be certain in advance of the disclosure.
Commentators from both a managed care perspective (Sabin, 1997) and a confidentiality perspective (Bollas & Sundelson, 1995, p. 155) have proposed that the Psychotherapy professions should be divided into so-called "social therapists" who work in a non-privileged, weak confidentiality model, and psychoanalytic therapists who maintain confidentiality which would, in effect, be consistent with the privilege. In fact, an acknowledgment of the existence of two forms of psychotherapy, one requiring a high level of confidentiality, and another without such a requirement, long predates the indisputable existence of this division in the 1990's.(92) A recent trend among mental health professionals is to limit the use of the term "psychotherapy" to those treatment relationships which are based on psychoanalytic principles out of recognition that the term psychotherapy is closely related to the origins of the field in psychoanalysis.(93) On the other hand, since the aim of most forms of verbal interventions with those suffering from mental disorders is to preserve or to augment the patient's autonomy, one could argue that under a "humanistic" rationale the privilege should apply broadly to a very wide spectrum of mental health treatments. (Imwinkelreid, 1999)
Beyond the questions of the nature of the eventual exceptions to the privilege and the particular subset (if any) of psychotherapy modalities which fall within the privilege, uncertainty may continue to prevail regarding the way to specify the classes of therapists whose patients are protected by the privilege. The court chose to adhere to the rule 504 precedent of identifying the psychotherapists by the nature of their professional license (adding licensed social workers to psychiatrists and psychologists) rather than on the "functional" basis of the kinds of psychotherapy provided. This choice, while reasonable in the 1950's and 1960's, when psychoanalysis and psychoanalytic psychotherapy were the predominant psychotherapeutic treatment modalities of these professions, makes less sense today. Not only do many members of these licensed professions not practice psychoanalytic psychotherapy, it is also the case that members of other professions, may provide psychotherapy founded on psychoanalytic techniques, including some trained psychoanalysts who do not have a background in any mental health profession. It may be, then, that at some time the Court will need to revisit the license-based criterion currently in force. (Dubbleday, 1985)
As proposals for the privilege appeared over the preceding decades, there was an accompanying recognition of the problem of defining its scope. On the one hand, it was recognized that basing the privilege on the "function" of the professional involved (i.e., was the activity "psychotherapy") would cause serious uncertainty in the patient and therefore some advocated the application to the privilege to all patients of licensed professionals in the specified professions. (Note, 1962, p. 1259). Other writers pointed out that many professionals in the designated professions carried out activities which were not psychotherapy and therefore a licenced based criterion alone would be too extensive. (e.g., Louisell, 1957, p. 736)
Finally, the decision in Jaffee has implications for the relationship of the psychotherapy professions to the rest of health care. Ever since Binder v. Ruvell, the basis of the privilege has been tied to a recognition of a qualitative, rather than quantitative distinction between the confidentiality requirements of certain forms of psychotherapy as compared with the privacy needs of the medical patient. This distinction was reiterated in the court's opinion in Jaffee.(94) As the health care system becomes more closely regulated, both with respect to record keeping requirements, and with respect to rules for the auditing of such records, the handling of information from the treatment of patients covered by the privilege will need special consideration to bring that treatment into line with the protection offered to legal clients. How this distinction will affect the traditional relationships among the professions, reimbursement mechanisms and auditing methods, and other similar issues will be worked out in the coming years.
Possible Applications of the Court's Ruling
Creation of the privilege for psychoanalytically based psychotherapies (and possibly others) sets the stage for a reexamination of the profession's posture regarding certain matters of confidentiality. For example, it is evident that the way in which records (if any) are kept and protected must change. A rethinking of the initiatives taken by the psychotherapy professions in the administrative, legislative and judicial arenas is in order.
For instance, under certain third-party reimbursement mechanisms, insurers have created an expectation that they may inspect psychotherapists' records for the purposes of "medical necessity" determinations or for "audits."
Patients in programs which are subject to audits, such as those supported by the Federal government (e.g., Medicare and Medicaid), are required to sign waivers of their rights to the confidentiality of their records in order to receive treatment. (Templeton, 1986) Prior to the Jaffee ruling, such waivers were, on privacy grounds, thought by some courts to be overly broad in the way they are interpreted .(95) Following Jaffee, it is reasonable to take a more critical view of such audits and the legitimacy and propriety of required "waivers." There appears to be a basis, if not a moral obligation, for the psychotherapy professions to challenge both the requirement of waivers in programs purporting to insure psychotherapy (which, in fact, cannot actually be provided without the protection offered by the privilege) and to challenge the audit procedures employed by government agencies such as HCFA.(96) Furthermore, since there are no reasonable alternative insurance plans available to Medicare and Medicaid patients, the waivers required to be signed by the patient before receiving the benefit might be considered "coerced" thereby unjustly forcing agreement to disclosure of highly personal information to the government or its agents on the part of any Medicare beneficiary who is unable to pay the entire cost of treatment herself.(97)
Review and audit mechanisms which are generally consistent with the privilege have long been known. (Borenstein, 1985, p. 195) and a mental health information law in Washington, D.C. restrains third party access to records in a way which is generally consistent with the privilege. (District of Columbia, 1979). As noted previously, a model for a publicly funded service which is delivered in the context of a privileged relationship is found in the Legal Services Corporation. The enabling legislation for that program specifically excludes government access to privileged records and creates an audit mechanism which respects the lawyer-client privilege. (98) The ability of the government to oversee, for example, Legal Aid programs without intrusion into the privileged lawyer-client relationships shows clearly that similar intrusions which has been taking place in the federally supported health programs should be subjected to a very stringent test of necessity. Without a demonstration of such a compelling necessity, it would be difficult to argue that the cost to the patient's treatment would outweigh any benefit to society of the government's intrusion into the psychotherapeutic relationships of patients in Medicare and Medicaid programs. (Imwinkelreid, 1999)
Proposals for the mandatory "computerization" of health care information in the U.S. will also have to be reexamined in the light of the new federal psychotherapist-patient privilege. While a networked system of computerized health care records could conceivably be created with protection sufficient to meet the ethical and confidentiality needs of ordinary health care records, (Anderson, 1996) it is inconceivable that information from a privileged relationship, whether lawyer-client or psychotherapist-patient, could be placed in such a system.
Courts' Interpretation of the Privilege following Jaffee
In the short time since Jaffee, a number of courts have cited Jaffee in similar and related cases. (e.g., U.S. v. Haworth, 1996) In general, the courts have interpreted the privilege in expansive terms, extending it beyond the range of treatments and therapists covered in the 1996 decision. (Pyles, 1998) For example, a Massachusetts case (U.S. v. Lowe, 1996) supported, by analogy, the creation of similar privilege for a client of a rape counseling center. Another court ruled, citing Jaffee, that although a patient had entered her mental state into litigation, the privilege was lost only with regard to relevant information, and supported a motion to quash a subpoena for the patient's entire record. (Vasconcellos v. Cybex, 1997) On the other hand, one lower court has held that in consideration of the rights of a defendant, in the case of a deceased patient, the judge may apply a balancing test even if the therapist has correctly asserted the privilege on the patient's behalf. (U.S. v. Hanson, 1997)
The Supreme Court's decision in Jaffee v. Redmond is the culmination of a near half-century effort to gain recognition in the federal courts for a testimonial privilege for psychotherapy patients. The psychotherapy patient has been given protection analogous to that provided to legal clients and religious penitents. Furthermore, the decision has ramifications which extend beyond the courtroom situation and points the way to further steps for psychotherapists to take to bring their conduct and the conduct of others into line with the new privilege right of their patients. Yet the Jaffee privilege rule, as is the case with all privilege rules, raises new questions which will be the subject of debate over the coming years.. These questions have to do with the scope of the privilege in respect to the types of psychotherapy covered by the privilege and the classes of psychotherapists whose patients are protected. Waivers which were typically required in the past as a precondition to obtaining confidential psychotherapy now appear to be improper.
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Note of Appreciation: My thanks to the many people who made helpful comments and suggestions, especially: Jerome Beigler, M.D., Norman Clemens, M.D., Edward J. Imwinkelreid, Esq., Marjorie Karowe, Esq., Barry Landau, M.D., Melissa Nelken, Esq.,
1. Francis Bacon, quoted by David Louisell (Louisell, 1956)
2. Judge Otto M. Kaus. Concurring and Dissenting, People v. Stritzinger, 34 Cal. 3d 521.
3. Fisher, 1964, p. 623.
4. Louisell, 1957. p. 746.
5. Beigler, 1984, p. 273; 1978, p. 255.
6. Some comments have included assertions that the privilege only has narrow significance within the context of Federal Court proceedings. Others have asserted that the decision in some way expresses broad support by the Court for privacy rights in all of "health care." As will be shown, both of these assertions are incorrect.
7. "...it is submitted that in the long run insistence upon precise analysis of the reason for privileged communications, and close inquiry into the true nature and psychological, social, historical and moral importance to human freedom of claims of privilege, will best separate the genuine from the spurious." (Louisell, 1956, p. 114)
8. "Since Dryden's time, courts have established the maxim that the court has the 'right to every man's evidence.'" (Klein, 1998)
9. According to the Supreme Court, the familiar expression 'every man's evidence,' was a well known phrase as early as the mid 18th century. Both the Duke of Argyll and the Lord Chancellor Hardwicke invoked the maxim during the May 25, 1742, debate in the House of Lords concerning a bill to grant immunity to witnesses who would give evidence against Sir Robert Walpole, first Earl of Orford. The bill was defeated soundly. (Lombardo, 19??, note 1)
The sacrifice of a person's privacy in giving all evidence was justified by Dean Wigmore as follows: "...the sacrifice may be of his privacy, of the knowledge which he would preferably keep to himself because of the disagreeable consequences of disclosure. This inconvenience which he may suffer in consequence of his testimony, by way of enmity or disgrace or ridicule or other disfavoring action of fellow members of the community, is also a contribution which he makes in payment of his duties to society in its function of executing justice. If he cannot always obtain adequate solace from this reflection, he may at least recognize that it defines an unmistakable axiom. When the course of justice requires investigation of the truth, no man has any knowledge which is rightly private..." [emphasis added](Wigmore, 1961, vol. 10, p. 72)
10. In Jaffee, the Court wrote, "Without a privilege, much of the desirable evidence to which litigants such as petitioner seek access - for example admissions against interest by a party - is unlikely to come into being. This unspoken 'evidence' will therefore serve no greater truth-seeking function than if it had been spoken and privileged." (Jaffee, 1996) Referring to Jaffee in its majority opinion in Swidler, the Court said "In related cases we have said that the loss of evidence admittedly caused by the privilege is justified in part by the fact that without the privilege the client may not have made such communication in the first place." (Swidler, 1998)
11. The U.S. Supreme Court admonished that privileges 'are not lightly created nor expansively construed, for they are in derogation of the search for truth.' (Slovenko, 1998, p. 5 citing United States v. Nixon 418 U.S., 638, 710, 1974)
12. "...it is nevertheless submitted that there are things even more important to human liberty than accurate adjudication. One of them is the right to be left by the state unmolested in certain human relations." (Louisell, 1956, p. 110).
13. A leading authority on evidence law wrote: "...it seems to this writer, who would of course not deny the social importance of relevant fact finding, or that full disclosure of relevant facts is important to complete and fair trials, that too often in contemporary thinking there is a failure adequately to evaluate the significance to human freedom of well-based privileges of confidential communications. [ref] Moreover, it seems that there is a tendency to over emphasize the value to the adjudicative process of forcing the professional man to disgorge secrets confided to him..." (Louisell, 1957, p. 749) and...
"...when it is the state which may be the opponent of a claimant to privilege, as in criminal cases, there is no sound reason automatically to foreclose the issue against the claimant. Such a foreclosure seems to this writer to be the function of a philosophy which deems state processes per se valuable and significant and individual interests per se subordinate, a philosophy whose devastating effects on human freedom often have been demonstrated by history ancient and recent, and are being demonstrated today." (Id., p. 750)
14. " ...the seemingly technical problems of testimonial privilege involve issues that lie at the center of the debate about the foundations of liberal society. To privilege certain relationships is to declare certain values..." (Levinson, 1994, p. 662)
15. "...privileges and obligations of confidentiality should be dealt with together ..." (Smith, 1986, p. 476) and "Confidentiality and privileges should be dealt with together in a coordinated and comprehensive manner." (Id., p. 551)
16. More accurately, privileges stand at the interface between the citizen and the government: "...rules of privilege function beyond the arena of a trial and may be invoked at any stage of any proceeding. A privilege may involve refusal to testify, a refusal to disclose a matter during the discovery stage, a refusal to produce real proof, or the right to prevent other people from doing any of the forgoing. A privilege allows a person to resist any governmental process aimed at eliciting protected information." [emphasis added] (Weissenberger, 1998, p. 198)
17. "The judicial system does not function in a vacuum; decisions by the United States Supreme Court today affect each of us tomorrow. Citizens tailor their behavior and relationships to conform to the needs of the judiciary, and the judiciary in turn must sometimes tailor itself to meet the needs of citizens..." (Fulkerson, 1997)
18. . ".. Most evidentiary rules affect only behavior in the courtroom. The rules determine whether a litigant may introduce certain evidence in at trial, but they have little impact on conduct outside the courtroom. Privilege rules are different. They affect prelitigation behavior such as the freedom with which patients divulge information to their physicians; they influence everyday activity such as the interaction between husband and wife. Privilege doctrines thus impact the conduct of citizens outside the courtroom to a greater extent than other evidentiary rules. While other evidentiary rules focus on the institutional legal objective of accurate factfinding, privilege doctrines promote extrinsic social values..." (Imwinkelreid, 1994)
19. . The refusal to divulge information is also based on the canons of ethics of the profession which offer a separate but reinforcing basis for protecting the privacy of the client. Similar considerations apply to psychotherapists.
20. For example, the section on audits in the Legal Services Corporation Act As Amended 1977 reads
".. Notwithstanding the provisions of this section or section 1008*, neither the Corporation nor the Comptroller General shall have access to any reports or RECORDS SUBJECT TO ATTORNEY-CLIENT PRIVILEGE..." [emphasis added][*section 1008 is about record keeping]
21. During the questioning of Justice Goldberg the following question and answer occurred:
MS. HOLTZMAN. Is it your feeling, as I gather from your testimony, that the question of privileges... would affect areas outside of legal practice, affect our conception of democracy, openness of society, relationships between people, and that since they do involve such important social issues, are legitimate legislative issues and legitimately fall within the area of Congress to deal with?.
MR. GOLDBERG. That was not only my opinion but, even those who supported the concept of a Federal code of evidence excluded the subject of privilege [from being promulgated by the courts] saying that it touched upon the substantive rights of the citizen. (Proposed Rules of Evidence, 1973, p. 147)
22. "...The critical effect of the privilege, of course, is not on legal relationships, but on the relationship between psychotherapist and patient. The real success or failure of the privilege is determined by whether it increases the willingness of patients to be open and forthright in therapy. A considerable amount of professional opinion has concluded that the privilege encourages openness..." (Smith, 1980, p. 27, note 168)
23. "To be sure, all who use professional services, whether lawyer or nonlawyer, must rely primarily on the personal integrity and professional ethics of these professions to prevent disclosure. Sanctions on unauthorized comment are weak and largely ineffective. [ref] To the extent, however, that rules of privilege affect attitudes toward disclosure made outside the courtroom, it may be just as important to protect the person who consults a psychiatrist, psychologist, family counselor, or social worker as the client of a lawyer..." (Note, 1962).
24. "In summary, there is no consensus as to whether the psychotherapist-patient privilege will shield a victim's psychotherapeutic records from review in all cases. When a criminal defendant argues that withholding the records violates his rights under the Confrontation Clause, courts may order the records released, even in the face of legislative intent that the privilege be an absolute one." (Courville, 1998, p. 222)
25. Not all commentators read Whalen as supporting medical privacy, thus: : "Moreover the Supreme Court has specifically held that there is no federal constitutional right to informational privacy for medical records, casting further doubt on the idea that there might be a constitutional right to privacy applicable to psychotherapeutic communications."[citing Whalen](Smith-Bell & Winslade, 1994) The same author wrote a decade earlier "Although there is language in the opinion that acknowledges a privacy interest in personal information, the Court stops short of recognizing a constitutional right in informational privacy, especially if the state takes appropriate steps to protect the information." (Winslade & Ross, 1985)
26. "The Supreme Court has declined to provide substantial privacy protection to medical data, but has hinted that, at some point, the release of this information by a state could become unconstitutional. In Whalen v. Roe, the Court permitted the state to collect and maintain certain information..." (Smith, 1986, p. 496)
27. A 1951 survey by the American Psychiatric Association reported that among private practitioners, "The majority of responding psychiatrists indicated that they are practicing general psychiatry and/or so-called 'neuropsychiatry' and about one-third emphasize psychoanalysis."(Muncie and Billings, 1951)
28. A report of a 1954 survey of psychiatric practice concluded with this observation: "Private practice of psychiatry on this continent is, in fact, a combination of two different types of practice. On the one hand, about one-fourth of such practitioners are substantially pure psychotherapists... This group does not meet the traditional criteria of the practice of medicine, their activities being more akin to the work of clinical psychologists doing psychotherapy." (Davidson, 1956)
29. "...the predominant contemporary usage is to equate psychodynamic with psychoanalytic." (Gabbard, 1990, p. 3)
30. Reflecting on the training of psychiatrists and the status of psychoanalytic practice in 1953, Dr. Robert Knight, President of the American Psychoanalytic Association wrote:
"...The interweaving of psychiatric and psychoanalytic training just described has implications for both psychiatric and psychoanalytic practice. Stated roughly, those psychiatric residents who either do not aspire to psychoanalytic training or are unable to obtain it settle for residencies in large psychiatric hospitals where the shock therapies are emphasized and where opportunities for psychotherapy are minimal. They have virtually no chance to learn how to conduct psychotherapy, and, if they go into office practice, usually set up for consultations and electroshock therapy. Those psychiatric residents who do aspire to and obtain psychoanalytic training learn to do both psychotherapy and psychoanalysis and veer away from the shock therapies. The result may be to bring about an ever greater cleavage between practitioners of the so-called physiological therapies on the one hand and practitioners of the psychological therapies on the other. Also, among the doctors obtaining both psychoanalytic and psychiatric training, there is a marked tendency for the distinctions between psychoanalysis and psychotherapy to become obscured...
"It is my impression from talking with many analytic colleagues that the 'pure' psychoanalyst, one who does only classical psychoanalysis, is a much scarcer individual at present, and that many analysts would privately admit that they are treating a number of patients with modified analytic techniques, or even with psychotherapy, and have relatively few patients with whom they employ a strictly classical technique..." (Knight, 1953)
31. One author listed at least 8 types of psychotherapy, "and many others" in 1955. (Hoch, 1955).
32. Writers on the subject in the 1960's used a broad definition of "psychotherapy," but seemed to equate the idea of psychotherapy with "saying everything." For example, "As used in this paper, the term 'psychotherapy' includes all modes of psychiatric treatment. It includes uncovering, exploratory, and reconstructive therapy, limited goal therapy, and psychoanalysis, its most intensive form." (Slovenko, 1960, p. 184, footnote 35). However the same article includes the following: "In psychotherapy, the patient reports whatever goes through his mind..." (Id., p. 186, see also Id., p. 186, footnote 40) .
Another author says, "It should be noted that wherever the words 'psychotherapist' or 'psychotherapeutic' are used, it is intended that they be taken in their broadest sense, and not in the traditional sense connoting a relatively 'deep' or intensive relationship." (Fisher, 1964, p. 612) However, this author also says "...it is clear that there is one element universally recognized as being necessary to the success of psychotherapy, what Alexander has described as a 'willingness for unreserved self-revelation.'" (Id., p. 619).
33. In a landmark 1974 opinion, "psychotherapy" and "counseling" were differentiated as follows:
"Psychotherapy literally means 'treatment of the mind.' It commonly refers to the use of psychological means to modify mental and emotional disorders of a serious, disabling nature...the therapist verbally explores the patient's conflicts, memories and fantasies in order to provide insight into the causes of the disorder... By contrast 'counseling' ... is aimed not primarily at uncovering deep psychological processes but at enabling the client to make more effective use of his present resources... Moreover, counseling is considerably more superficial and less searching than what we understand to be included in the therm 'psychotherapy.' Counseling either does not, or should not, have as its aim a deep penetration into the psychic processes of the patient or client. The need for a privilege to foster the counselor-client relationship is correspondingly less apparent." (Allred, 1976, pp. 418-419) and...
"Psychotherapy to some persons connotes an exhaustive, lengthy analysis of the patient's personality pursuant to the doctrinal tenets and working methods of Sigmund Freud. This is not invariably the case. There are other medically developed schools of psychotherapy including, but not limited to, Adlerian, Jungian, psychobiological (Adolf Meyer), neo-Freudian (Horney, Sullivan, Fromm), and existential approaches." (Id. p. 419, fn. 20)
34. "...though counseling uses many of the principles of psychoanalytically oriented psychotherapy, there are distinct differences between the two. It would seem helpful to discuss here the basic differences between counseling and therapy. Counseling involves the relationship of the person as he is to problems outside of himself, without expectation of a planned change in his basic personality.... Psychotherapy includes counseling but is not included within counseling... psychotherapy (here defined as psychoanalytically oriented psychotherapy) includes study of unconscious mental processes, defense mechanisms, transference, and resistance; and the most important tools of psychotherapy are analysis of the resistances, working through, and interpretation. Counseling should avoid or bypass these areas whenever possible."[emphasis added] (Hodge, 1975, pp. 203-205)
Furthermore: "The counselor needs only to obtain superficial and general information about the patient's personality and how he functions, and must spend more time in considering alternative choices and superficial feelings relevant to the presenting problem." (Id., p. 209)
35. "..it is possible that confidences imparted to a psychiatrist [i.e., a physician-psychotherapist] in these states would not be considered privileged. The principle reason for this situation is that many of the medical practice acts were drawn up at a time when it was inconceivable that anyone could practice medicine without using drugs or surgical instruments. The treatment of emotional illness by psychotherapy, which is administered by oral communication, was not covered by many of the acts." (Zenoff, 1962, p. 659)
36. In 1954, the American Medical Association, The American Psychiatric Association, and the American Psychoanalytic Association approved, and published, a joint resolution which stated, in effect, that only "psychiatrists" could carry out "psychotherapy," which was defined as a "medical treatment." (Amer. Med. Assn. Committee on Mental Health, 1954)
37. A major textbook of psychoanalysis says "Free association is the major method of producing material in psychoanalysis." (Greenson, 1967, p. 33). Greenson adds, "[Free association] is used on selective occasions in those forms of psychotherapy which attempt some amount of uncovering, the so called 'psychoanalytically oriented psychotherapies.' It is not used in the anti-analytic therapies, the covering-up or supportive therapies." However, a glossary of psychoanalytic terms from a professional organization of psychoanalysts is inconsistent on this point saying both that free association is used in psychoanalytic psychotherapy (Moore & Fine, 1990, p. 78) and that it is not used (Id., p. 17).
An authoritative text holds: "The central method of psychoanalysis and of psychoanalytic psychotherapies is free association." (Kris, 1986, p. 104)
"The 'fundamental rule' of psychotherapy (sic), Freud wrote, is that the patient be totally forthcoming with the therapist(sic), revealing everything no matter how insignificant it may seem. Inhibition by the patient thus can doom the therapeutic enterprise." (Winick, 1996, p. 260).
38. In legal documents and articles, the term "free association" is rarely used. Commonly, the somewhat misleading terms "full disclosure," "free disclosure," and "disclosure" which are associated with the concept of the lawyer-client privilege, are used instead.
39. The term "free association," is an imprecise translation of the German "freier Einfall" which is intended to suggest the "popping into" one's mind of a thought; freier Einfall therefore suggests an event which is less dependent on volition. (Bettelheim, 1982) This idea, of attempting to say, without reservation, whatever pops into one's mind, no matter how irrelevant, personal, embarrassing, or secret is what has led to the idea that the psychotherapy patient's communications need protection which goes beyond even that accorded to legal clients. The latter must "fully disclose" but are still governed by ordinary social conventions and restraints in their conversations with attorneys. (Fisher, 1964, p. 611)
40. A 1956 editorial in JAMA said "..in the United States [the findings of psychoanalysis] have become essential elements of dynamic psychiatry and psychosomatic medicine as we know them today... The continuing development of dynamic psychiatry goes hand in hand with the continuing explorations of the human mind, for which psychoanalysis is the basic method." (Gitelson, 1956)
41. "Not keeping records apparently has long been common [i.e., among psychotherapists]. The world of psychiatry is not like the world of law or medicine... Even if there is a record, it would not pass muster under the business-records exception to the hearsay rule, which allows the admission of records only when they have a high degree of accuracy and are customarily checked as to correctness... Psychotherapy is concerned with the tension between inner reality and the outside world. The law is concerned with the outside world, i.e., with objective facts, that which is called truth." (Slovenko, 1975, p. 190).
42. Practice Bulletin #2, "Charting Psychoanalysis," suggests keeping no record of daily appointments for technical reasons occasioned by the current lack of protection that could be given to such records. The document acknowledges the possible hazards to the practitioner of heeding this advice, thus illustrating the profession's commitment to the underlying principle of protecting the patients' communications from any disclosure whatsoever. (American Psychoanalytic Association, 1994)
43. The Restatement of Torts (Second) says "Where there are different schools of thought in a profession, or different methods are followed by different groups engaged in trade, the actor is to be judged by the professional standards of the group to which he belongs." (Cited in Grabois, 1997, p. 71).
44. "Free association is far less useful farther along the continuum toward the more supportively based treatments." (Gabbard, 1990, p. 76)
45. As an example, a recent article on the behavioral treatment of "panic disorder" describes the following treatment components: education, cognitive intervention, relaxation, controlled breathing, and exposure. (Hofmann & Spiegel, 1999).
46. "Psychiatrists are now often called 'hydraulic doctors' - they raise and lower dosages; they are less and less 'the listening and talking doctor.' The 'P' word is no longer psychoanalysis, but Prozac. Rapidly fading are the days of free association, dream analysis, and an exploration of one's past history. This change in the practice of psychiatry very much undercuts the argument distinguishing psychiatry from medicine in regard to privilege." (Slovenko, 1998, p.45) [emphasis added]
47. The opinion also stated:
"...the ordinary physician seeks from his patient disclosure of facts relating to a particular malady, insofar as the information might aid him in ascertaining the subjective symptoms; the psychiatrist seeks to ascertain the cause of mental or emotional disturbances of a maladjusted patient. His sphere of inquiry necessarily covers every experience of the patient... In fact, what he seeks to do is to bring back to the conscious memory of the patient things forgotten but which lie dormant in the subconscious mind... He probes deeply, and it is necessary for him to get the information from the mouth of his patient... " (Binder v. Ruvell, 1952)
48. Judge Fisher wrote:
"I am persuaded that it is just one of those cases where the privilege ought to be granted and protected... Out of this very practice of psychiatry may come evidence of values that we have not in the past been able to see. It may even throw light on the value of the confessional, not from a religious point of view but from a psychotherapeutic point of view. It may be that the old adage 'confession is good for the soul' may have greater depth than a mere adage. There may be therapeutic value in unburdening the things that trouble the mind." (Binder v. Ruvell, 1952)
49. In the early 1980's, an article in a leading medical journal said: "Medical Confidentiality, as it has traditionally been understood by patients and doctors, no longer exists... it is a decrepit concept... Psychiatrists have tacitly acknowledged the impossibility of ensuring the confidentiality of medical records by choosing to establish a separate, more secret record." (Siegler, 1982)
50. "Efforts to create a common approach to the handling of all medical information will expose patients in treatment for mental illness to exceptional vulnerability compared to other types of patients..." (Brooks, et. al., 1997)
51. "When should a court distinguish between the needs of varying modalities of therapy if psychiatrists themselves do not? Hollender held that a major reason for the absence of safeguards is 'the categorization of psychotherapy as a conventional medical procedure.' because 'many psychiatrists have gone out of their way to stress the similarities of psychiatry to conventional or traditional medical practice.' [ref] There may be similarities, but the differences are of primary importance here." (Dubey, 1974, p. 1094)
52. Although there have been a number of rationales asserted to support the psychotherapist-patient privilege, commentators using a utilitarian perspective have pointed out that it is the specific nature of psychoanalytic treatment that underlies the need for the privilege. For example:
"...The traditional utilitarian justification for the psychotherapist-patient privilege derives from an essentially Freudian model of psychoanalysis. Although many schools of psychotherapy do not depend on full disclosure by the patient to the same extent as psychoanalysis, the central role of disclosure in the Freudian model has influenced the entire field of psychotherapy." (Harvard Law Review Assoc., 1985, p. 1542)
"Although there are many types of psychotherapy, the model upon which privilege arguments are usually based is psychoanalysis as originated by Sigmund Freud. Psychoanalysis is used as a springboard to support the psychotherapist-patient privilege because it is based on the theory that a patient's problems result from conflicts repressed in the unconscious which must be probed in order to treat the patient." (Domb, 1990)
53. I have quoted this passage and the ensuing passage from the GAP report in the body of the text because these texts are cited over and over in scholarly articles and court opinions as the "empirical evidence" of professional opinion which justifies the privilege.
54. "The so-called 'fundamental rule,' the rule of 'free association' with the elimination of critical selection of material, is the indispensable prerequisite of analytic technique..." (Slovenko, 1960, p. 186, quoting Reich).
55. In a subsequent article the same author, in explaining why it is that "psychotherapy" satisfies Wigmore's second criterion, while ordinary medical care does not, relied on the assertion that "inviolability of that confidence is essential to the achievement of the purpose of the [psychotherapy] relationship." He said, "In psychotherapy, the desideratum is that the patient report whatever goes through his mind" (Slovenko & Usdin, p. 436) and added "Modern dynamic psychotherapy entails compete divulgence of one's innermost secrets." [emphasis added] (Id., p 443).
56. For one comparative view of the requirements of the professions see Saltzburg, 1980.
57. "Rule 504 of the proposed rules was based on the assumption that an assurance of confidentiality is essential to effective psychotherapy, but not essential to most medical care." (Smith, 1986, p. 521) and...
"The more favorable reaction toward the psychotherapist privilege appears to be based on a recognition that confidentiality is of special importance in the psychiatric relationship." (Gellman, 1984, p. 273) and also...
The Advisory Committee note reads, in part, as follows:
"The rules contain no provision for a general physician-patient privilege. While many states have by statute created the privilege, the exceptions which have been found necessary in order to obtain information required by the public interest or to avoid fraud are so numerous as to leave little if any basis for the privilege...
"The doubts attendant upon the general physician-patient privilege are not present when the relationship is that of psychotherapist and patient..."
The Advisory Committee note then quotes at length from the GAP report cited above and the Slovenko analysis of the privilege(s) in the light of Wigmore's analysis (Slovenko, 1960)
58. "Rule 501 provides that in federal criminal cases and in civil cases where federal law provides the rule of decision, privileges should continue to be developed by the courts of the United States under a uniform standard applicable both in civil and criminal cases..." (Graham, 1996, p. 508)
59. An additional basis, now considered by some to be anachronistic, is "professional honor." Subsumed under this rationale is a profession's obligation to maintain confidentiality on an ethical basis. The commitment of professions to such ethics are seen in the lobbying efforts which have led to the creation of privileges by legislative means. "Thus, in practice, professional honor, or ethical obligations is an important basis for privileges." (Smith, 1986, p. 479)
60. One article on the subject starts out basing the need for a privilege on a psychoanalytic conception of treatment: "The argument for psychiatric privilege derives from the distinctiveness of therapy as opposed to medical consultation. The patient in analysis must learn to free associate and to break down resistances to dealing with unconscious threatening thoughts and feelings. To revoke secrecy after encouraging such risk-taking is to threaten all future interactions..." but by the next paragraph, and with no further justification, extends the therapies to which this applies as follows:
"The effective core of all psychotherapies is the interpersonal relationship regardless of the specific method of treatment. Freudians, Sullivanians, Jungians, Behaviorists, Rogerians and Existentialists, to mention but a few, all agree that privacy of the relationship must be protected." (Ruben & Ruben, 1972)
61. In fact, at least three different "constitutional" bases for a privilege have been considered. Two of these are based on the 4th and 5th amendments, providing protection against unreasonable search and self incrimination, respectively. Each of these would apply in only a small number of cases and so is seen as not being a an adequate basis to support the privilege. The third, the so-called constitutional "privacy right" would be much more general in its application and therefore is often referred to as simply the "constitutional rationale" for the privilege. (Courville, 1998, p. 203)
62. For instance "As a general proposition, the privilege should only extend to therapy that requires a deep, searching inquiry into the personality and life of the patient. Only this kind of therapy truly needs the protection of a privilege to promote the patient's complete candor...
"...Obviously, not everyone is qualified to conduct therapy that necessitates a deep exploration of a patient's mind and background. Otherwise, a privilege covering therapy and counseling could conceivably be interpreted to include communication not only to licensed psychiatrists and psychologists, but also to social workers, marriage therapists, counselors of all kinds and ultimately, to the corner bartender who informally assumes the role of therapist or counselor. A privilege so broad, of course, would be unsatisfactory; too much relevant evidence would be excluded from the courts." (Smith, 1980, p. 49) [emphasis added] also...
"Psychotherapist should be defined as narrowly as possible to avoid unnecessarily removing information from the courts. It is perhaps important to distinguish between psychotherapy and counseling, the former often involving a more probing and detailed analysis. [ref] Counseling does involve some sensitive and very confidential matters, yet those might be handled in a manner similar to that proposed for medical care (certain sensitive subjects would be protected from disclosure)." (Smith, 1986, p. 551)
63. "Operating under the assumption that certainty favors absolute rules over ad hoc standards, scholars commonly state that privileges justified by the traditional justification should be cast as absolute rules, and that privileges justified by the privacy rationale should be qualified by the case-by-case balancing of privacy against the need for evidence. The notion that the type of justification employed governs the choice between rules and standards is, however, overly simplistic." (Harvard Law Rev. Assn. , 1985, p. 1487)
64. "In 1975, Ralph Slovenko wrote, "...the assertion by psychiatry that a testimonial privilege is essential for the practice of psychotherapy has never really been substantiated." (Slovenko, 1975) In part, this assertion shows that existing research and authoritative opinion on the necessity of confidentiality for psychotherapy may still not be considered as supporting the necessity of a privilege for psychotherapy -- not exactly the same issue. The very small volume of research with negative results cited on the specific issue of the importance of a privilege, per se, (e.g., Shuman et. al, 1986; Shuman & Weiner, 1982; Weiner & Shuman, 1983; and Weiner & Shuman, 1982) has been criticized on the grounds of "...small sample sizes, large non-response rates, selection of the patient sample by psychiatrists in a non-randomized fashion, and the assumption that lay adult education students without mental health problems behave in a way similar to individuals who have such problems..." (Winick, 1996, p. 255). Recent research continues to support the importance of confidentiality in the willingness of psychotherapy patients to self-disclose: "Regardless of personality traits or demographic background, results revel that clients and college students were less willing to be candid with a therapist under a managed care regimen than is a standard fee-for-service setting. The impact of managed care requirements on clients' willingness to disclose was quite powerful indicating that psychologists may be deprived of significant amounts of client information due to fears about confidentiality infringements." (Kremer & Gesten, 1998)
65. "Testimonial or evidentiary privileges contravene [the] fundamental principle [that the court has the right to 'every man's evidence.] Justice Frankfurter put it best when he stated that the courts must carefully scrutinize and strictly construe privileges 'only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.'" (Klein, 1998, p. 701)
66. "The Court had declared that '[e]videntiary privileges in litigation are not favored.' Appreciating that privileges obstruct the search for truth, the Court opined that the recognition of a new privilege is warranted only when the privilege would serve a 'public good' of such magnitude that it 'transcends[s] the normally predominant principle of utilizing all rational means [for] ascertaining truth." (Amann & Imwinkelreid, 1997, p. 1020)
67. "The Second and Sixth Circuits affirmed the need for the privilege while the Fifth, Ninth, Tenth, and Eleventh Circuits all refused to acknowledge the privilege." (Klein, 1998, p. 723)
68. Eleven states equate the privilege with the attorney-client privilege. Five others have minor modifications. Twenty-one states have rules which follow the proposed rule 504. Four states combine the privilege with that of physicians or mental health professional. Four states recognize a privilege for psychiatrists only. One state recognizes a physician-patient privilege without specifically mentioning psychotherapists. (Klein, 1998, p. 720)
69. The dissenting opinion begins as follows: "The Court has discussed at some length the benefit that will be purchased by creation of the evidentiary privilege in this case: the encouragement of psychoanalytic counseling. It has not mentioned the purchase price: occasional injustice..." [emphasis added]
70. "Nor is there any reason to believe that respondent was receiving psychoanalysis, rather than some other, more common form of counseling: therapists require 'uncensored access to all of their patient's thoughts and feelings in relatively few cases.'" (Flaxman, 1995)
71. "Essentially ignoring the humanistic [i.e., privacy - pwm] argument articulated by the Seventh Circuit, the majority instead adopted and elaborated on the circuit court's instrumental rationale..." (Amann & Imwinkelreid, 1997, p. 731), and also...
"In its Jaffee opinion, the Court exclusively used a utilitarian rationale as the basis for granting the psychotherapist-patient privilege. [reference] That is, the arguments were based on the policy the Court was seeking to forward by granting the privilege, i.e., the availability of effective psychotherapeutic treatment..." (Courville, 1998, p. 197)
72. Some immediate and subsequent comments sought to have the privilege undone by recourse to the legislative branch: "Kenneth N. Flaxman, the lawyer for the family of shooting victim Ricky Allen Sr., criticized the opinion as unnecessarily broad and going further to protect the confidentiality of conversations in federal trials than states had. 'This cries out for congressional correction,' he said." (Biskupic, 1996)
Echoing Flaxman, an early Law Review comment said, "Convinced on policy grounds to recognize the privilege and unable to discern a limit to its own lawmaking authority, the Court compromised Congress's directive to ground new privileges in principles of common law. This combination of specious policy [ref] and self-aggrandizement will undermine doctrinal uniformity and certainty and will create confusion ill-befitting a federal rule. Ultimately, Congress may have to tame this intractable federal privilege into a manageable monster." (Note, 1996).
73. "The question is whether Jaffee signals a fundamental change in the federal courts' receptivity to privilege claims. If it does, its progeny could represent a major threat to plaintiffs' discovery rights. At first blush, Jaffee should give the plaintiffs' bar pause. However, the thesis of this article is that even with Jaffee as a benchmark, the federal courts will probably continue to adopt a skeptical attitude toward creating new privileges or expanding old ones." (Imwinkelreid, 1997)
74. Despite his having played a major role in the sequence of events which led eventually to the Jaffee decision, (Slovenko, 1960) Professor Slovenko lost confidence in the value of the privilege by the mid-1970's when he wrote: "The concept of privilege, while it may offer a sense of security, should be abandoned as a means of determining whether disclosure of communication in psychotherapy should be required... privilege is, in the case of psychotherapy, an unnecessary and misleading claim." (Slovenko, 1974, p. 672)
75. "[Unlike the other privileges with hundreds of years of history] The psychotherapist-patient privilege, however, dates to only the 1950's, and has not produced the expectations of confidentiality created by the long history and deep cultural roots of the other privileges." (Cantu, 1998)
76. "As we explained in Upjohn, if the purpose of the privilege is to be served, the participants in the confidential conversation 'must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.'" (Jaffee majority, 1996)
A commentator added: "...certainty may require the Court to draw a bright line as to whom the privilege applies...In Jaffee, the Court emphasized the need for a predictable privilege; however the psychotherapist privilege will not be predictable until more of its contours (especially to whom it applies) are defined. District courts have little to guide them in their application, and as a result, may look to the law of the states in which they sit [and] ...inevitably more conflict will develop." (Fulkerson, 1997)
77. Footnote 19 of the majority opinion in JAFFEE reads:
"19.Although it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist."
78. Footnote 19 appears at the following point in the opinion:
"A [i.e., rule 501] rule that authorizes the recognition of new privileges on a case-by-case basis makes it appropriate to define the details of new privileges in a like manner. Because this is the first case in which we have recognized a psychotherapist privilege, it is neither necessary nor feasible to delineate its full contours in a way that would "'govern all conceivable future questions in this area.'" 19
79. Justification of any exceptions are, in fact, controversial and therefore exceptions to the privilege should not be granted without careful examination of their empirical basis, and their ethical implications. In regard to a future crime exception (including child abuse?) On author wrote recently "Would it instead deter patients who intend to commit a crime from entering therapy, or from disclosing their intention in therapy, in either case foreclosing the potential that a therapeutic intervention might prevent the crime? These are interesting and unresolved empirical questions that deserve investigation." (Winick, 1996, p. 262, see also Fisher, 1964, p. 632 & 653). Other commentators have argued strongly against a patient-litigant exception. (Beigler, 1971; Dubey, 1974) Others have argued that, unlike the lawyer-client privilege, the Federal psychotherapist-patient privilege should protect even the identity of the patient. (Soffin, 1985).
80. "...that 'duty to protect' is the only exception the Court advocated. The Court implied that, not only is the duty to warn' an affirmative duty, it creates in itself an exception to the psychotherapist-patient privilege in a courtroom setting - especially in commitment proceedings." (Klein, 1998, p. 737).
81. Looking to the states for guidance, the following exceptions are listed by one writer: hospitalization, 26 states; court ordered examination, 27 states; patient-litigant exception 29 states; child abuse cases, 14 states; homicide and violent crime trials, 4 states; all crimes, 2 states; controlled substances, 1 state. (Cantu, 1998, p. 383). However the conflicting requirements in some states to report child abuse cases may not be listed as a specific exception in the privilege statute.
82. In the 1950's, the term "psychotherapy" was used to define the treatment by verbal means of a mentally ill individual by a licensed practitioner, usually a physician. "Counseling" was used to describe the assistance, given by verbal means to an individual in coping with life problems but not a mental illness. (Note, 1951)
83. "Counseling [as opposed to therapy] either does not, or should not, have as its aim a deep penetration into the psychic processes of the patient or client. The need for a privilege to foster the counselor-client relationship is, correspondingly, less readily apparent." (Allred, 1976) and...
"The Court [in Allred] held that the privilege applied only to psychiatrists and psychologists who do therapy as opposed to other professionals who do counseling." (Smith, 1986, p. 494) [emphasis added]
84. An example of synonymous use: "When considering context, courts must inquire about the proportion of practice that a mental health professional devotes to counseling or psychotherapy. For example, if the professional devotes a large part of her day to counseling clients, the communications at issue likely ensued in the confidential haven that the psychotherapist privilege protects." (Archer, 1997, p. 373)
An example of using 'psychotherapy' as a subset of 'counseling': "How should determination of whether counseling was in the nature of psychotherapy be made?" (Faughnan, 1997, p. 721)
85. "We have no hesitation in concluding in this case that the federal privilege should also extend to
confidential communications made to licensed social workers in the course of psychotherapy."[emphasis added](Jaffee, 1996)
86. As early as 1957, the troubling prospect of the undue extension of the privilege was recognized. One authority sympathetic to the privilege wrote: "...society cannot afford to subordinate the needs of judicial administration to a never-ending expansion of the confidential communication privileges to embrace a multitude of additional relationships." (Louisell, 1957, p. 743)
Forty years later, the same problem is unsolved: "Without strict, judicially-imposed standards regulating the application of the psychotherapist privilege, the inevitable efforts to broaden it will eviscerate the time-honored rule that 'privileges are to be narrowly construed'... the Court's reasoning suggests that a 'psychotherapist' privilege extends to those who perform psychotherapy, irrespective of professional affiliation. However, what constitutes 'psychotherapy' remains unclear... Nothing in the Court's analysis indicates that the privilege could not also extend to licensed family therapists, licensed professional counselors, employee assistance professionals, registered nurses, chemical dependency counselors, pastoral counselors, or even volunteer domestic violence and rape counselors. Thus, when applying Jaffee to novel claims of psychotherapist privilege, federal courts will confront inevitable difficulties." (Archer, 1997, pp. 358, 360-362)
87. "The reasoning the U.S. Supreme Court used in reaching its holding in Jaffee is favorable to the counseling profession and can be used by counselors in seeking new or stronger counselor-client privilege laws in their states. The language in this case could even be used in seeking societal recognition of the importance and significance of counselors in such areas as third-party insurance reimbursement for counseling services or the establishment or continuation of public or private counseling programs." (Remley, et. al., 1997)
88. There are between 900,000 and one million attorneys in the U.S. "There are approximately 30,642 psychiatrists, 56,000 psychologists, and 81,000 psychiatric social workers practicing mental health counseling today." (Winick, 1996, p. 264, citing 1990 source.)
89. "The big secret these days is that what patients tell therapists [in managed care programs] is no longer confidential. Managed care companies demand detailed accounts of patients' workplaces, family problems, love life, addictions, suicidal ideation, episodes of anger, and so on. These data are required to substantiate the diagnosis and treatment plan at a remote site where case managers sit at computers. The information, which includes case assessments, mental status exams, and progress reports comes in by telephone, fax, and mandatory written reports and questionnaires. Everything is entered on the computer; written reports may be microfilmed for future reference. Almost all behavioral health companies file material by the patient's health insurance number, which is usually the same as his or her social security number.
"Furthermore these companies are constantly merging and expanding." (Pomerantz, 1999)
90. "Managed care defines and treats mental illness in terms of the ability of a person to function, while traditional mental health care is concerned with long-term treatment of underlying illness. Mental health is becoming geared toward the needs of larger populations rather than those of individual patients in one-to-one meetings." (Tuttle & Woods, 1998, p. 6)
91. (1) Does the communication originate in a confidence? (2) Is the inviolability of that confidence vital to the achievement of the purpose of the relationship?
92. In an article anticipating the same distinction being raised by writers in the 1990's, Marc. H. Hollender in 1965 described the two types of psychotherapy as "patient-oriented psychotherapy" and "society-oriented psychotherapy." He described the need for a privileged relationship in the former, but not in the latter. (Hollender, 1965)
93. A writer in a prominent clinical social work journal put it this way: "...managed mental health care is not psychotherapy, corporate advertisements to the contrary. We must encourage our own professional organizations to make this difference known and to inform the public that the practice of managed mental health care violates some of the most important tenets of our Code of Ethics..." (Edward, 1999).
At the same time mental health professionals who believe that utilizing psychoanalytically based methods in the treatment of seriously ill mental patients is potentially harmful, explicitly avoid the term "psychotherapy" in describing their treatment approach.. Preferred terms for treatments which do not look beneath the surface of the mind are "psychosocial treatment" or "personal therapy." Presumably the treaters are thus not "psychotherapists" and the relationship is not a psychotherapist-patient relationship. (Hogarty et. al., 1997; Dinaker & Sobel, 1999; Hogarty, 1999).
94. From the majority opinion: "...Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment..." (Jaffee, 1996)
95. "...it would be unreasonable to hold that an indigent patient who signs a form stating that a provider may release certain medical records to the State exercises a knowing waiver of his interest in not having his most personal confidences to the psychiatrist disclosed. It is far more likely that, if he reads the form at all, a patient would assume that the records would include only billing information and similar non-confidential matters." (Hawaii Psych. Soc., 1979, p. 1045)
"Courts have been inconsistent in their analyses of the psychotherapist-patient privilege in cases concerning Medicare and Medicaid fraud. Some, while limiting the scope of the disclosure to information connected with the specific purposes of the antifraud statutes, have failed to specify which information must be protected. Others have characterized the patient's submission of records to insurance companies as a waiver of the psychotherapist-patient privilege to the extent of that disclosure... " (Khajezadeh, 19??, p. 131)
"...It is difficult to accept , for example, that courts have interpreted a disclosure of information to an insurance company for the purpose of establishing coverage as constituting a total waiver of the right to confidentiality of all records." (Sloan & Hall, 1984).
96. "..insurance benefits or employment may be denied to those who refuse access to the information. This is at best coerced consent to the release of information which, as discussed, may carry with it a secondary release of information to others. In certain other instances patients may not realize that they are waiving certain confidentiality rights, or recognize the full consequences of the waiver." (Smith 1986, p. 542)
97. "...irreparable injury would exist even if the threat of searches would not have [an] inhibiting effect on psychiatric care. The disclosure of highly personal information contained in a psychiatrist's files to government personnel is itself a harm that is both substantial and irreversible." (Hawaii Psych. Soc., 1979, p. 1052)
98. The 1974 law which established the LSC had this to say about "audits":
(d) Notwithstanding the provisions of this section or section 1008*, neither the Corporation nor the Comptroller General shall have access to any reports or records subject to attorney-client privilege. [emphasis added]
A 1996 amendment to the LSC law added more specific information about audits:
(a) An audit of each person or entity receiving financial assistance from the Legal Services Corporation under this Act (referred to in this section as a `recipient`) shall be conducted in accordance with generally accepted government auditing standards and guidance established by the Office of the inspector General and shall report whether - [etc..]...
(h) Notwithstanding section 1006(b)(3) of the Legal Services Corporation Act (42 U.S.C. 2996e(b)(3)), financial records, time records, retainer agreements, client trust fund and eligibility records, and client names, for each recipient shall be made available to any auditor or monitor of the recipient, including any Federal department or agency that is auditing or monitoring the activities of the Corporation or of the recipient, and any independent auditor or monitor receiving Federal funds to conduct such auditing or monitoring, including any auditor or monitor of the Corporation, except for reports or records subject to the attorney-client privilege.[emphasis added]