Jaffee v. Redmond: The Supreme Court Adopts a Federal Psychotherapist-Patient Privilege and Extends the Scope to Encompass Licensed Social Workers

Confidentiality Considerations in regard to “Documentation of Psychotherapy” in the Light of the Supreme Court Jaffee v Redmond Decision

On June 13, 1996, the U.S. Supreme Court established the psychotherapist-patient privilege in the Federal Courts.  This important decision was the ultimate societal expression of the need to provide absolute protection from disclosure of  communications between psychotherapists and their patients.  This WWW site is your link to historical and developing  information about this most important factor in protecting the confidentiality of psychotherapy.

Although the JAFFEE privilege has been likened by the Supreme Court to the attorney-client privilege, the JAFFEE privilege lacks the latter’s many years of common law experience. The way in which the new privilege develops is of major importance to all psychotherapists and their patients.  It is the goal of this WWW site to increase public awareness of the JAFFEE privilege and its important implications for the confidentiality of psychotherapeutic relationships. 

Recent Development


Jaffee v. Redmond: The Supreme Court Adopts a Federal Psychotherapist-Patient Privilege and Extends the Scope to Encompass Licensed Social Workers

Confidentiality Considerations in regard to “Documentation of Psychotherapy” in the Light of the Supreme Court Jaffee v Redmond Decision

Jaffee v. Redmond: The Supreme Court Adopts a Federal Psychotherapist-Patient Privilege and Extends the Scope to Encompass Licensed Social Workers

March 9, 2012 — Eighth Circuit Declines to Recognize a “Dangerous Patient Exception”   —  Joining Sixth and Ninth Circuits, the Eight Circuit has declined to recognize a “dangerous patient exception” to the Jaffee privilege.  The Court in U.S. v. Ghane made clear that the issuing of a “Tarasoff warning,” even with the patient’s explicit consent to the warning, does not waive the psychotherapist-patient privilege.

October 6, 2008 — Certiorari Denied in U.S. v. Auster  —  The Supreme Court denied certiorari  in the U.S. v. Auster case (see February 11, 2008 item.)  The Fifth Circuit Decision raises troubling questions in regard to what, if anything, patients are told at the inception of treatment about the boundaries of confidentiality, and puts a new spotlight on the previously unexplored implications of Footnote 12 in Jaffee.

July 18, 2008 — Second Circuit upholds the privilege in the context of “garden variety” complaints of emotional distress in Sims v. Blot.  This carefully reasoned decision upholds the principle articulated in Vanderbilt v. Chilmark and other cases. 

February 11, 2008 — Circuit Split results from Fifth Circuit Decision — The Fifth Circuit has decided in U.S. v Auster that the issuing of a “Tarasoff” warning, in the face of a patient’s knowledge that such a warning would be issued following a threat, places the communication of the threat to the therapist outside the privilege and therefore makes that fact admissible in a subsequent criminal proceeding against the patient.  This takes the opposite view to that taken in U.S. v Hayes (Sixth Circuit) and U.S v. Chase (Ninth Circuit). [addendum: a certiorari petition has been filed]

March 19, 2007 — Certiorari Denied in Oberweis  —  The Supreme Court denied certiorari in the Oberweis case (see November 22, 2006 item.) 

November 22, 2006 — Certiorari Petition Filed in Case Raising “At Issue” Exception  —  The Supreme Court has been asked to review a Seventh Circuit ruling which supports the so-called “patient-litigant” exception to the Jaffee privilege.  In Doe v Oberweis Dairy the Seventh Circuit held that psychotherapy records were not protected by the Jaffee privilege in light of a claim for ordinary mental distress.  The petition claims that this holding is in conflict with holdings in two EEOC cases in the Fifth Circuit.

June 13, 2006 — Tenth Anniversary of Jaffee Decision —  The Jaffee decision, handed down June 13, 1996, has now been on the books for 10 years. Developments in the law following Jaffee have begun to define the “contours” of the privilege, but there is still much to be decided. An article in Psychiatric News (American Psychiatric Association) addresses Jaffee’s relevance today.

July 5, 2005 — Ninth Circuit Rules that Statement Made to Therapist outside Scheduled Session is not Privileged —  The Ninth Circuit has ruled in U.S. v Romo that a statement made to a psychotherapist in a private non-scheduled meeting (a “session?”) is not “in the course of diagnosis or treatment” and is therefore not privileged!  One judge was of the opinion that such a meeting is part of the treatment relationship and therefore a statement made in such a meeting is protected by Jaffee.

June 27, 2005 — U.S. Supreme Court declines to hear appeal on reporters’ privilege — Reporters Judith Miller and Matthew Cooper refused to disclose sources to a Federal Prosecutor and were found in civil contempt by a district court.  The judgement of the district court was sustained in a decision by the DC Circuit Court of Appeals.  In this decision the appellate court discussed the issue of a supposed federal reporters’ privilege in relation to the absolute Jaffee privilege, and agreed that, if such a reporters’ privilege exists, it is not absolute.  In refusing to review this decision, the Supreme Court declined an opportunity to establish the existence of a federal reporters’ privilege despite the existence of “shield laws” in a number of states.

March 26, 2004 — Seventh Federal Circuit Rejects a Federal Privilege in the “Partial Birth Abortion” Records Case — An Illinois Federal District Court ruled (full text) that records of  patients who underwent abortions are privileged in the Federal Courts either because the HIPAA Privacy Rule “no preemption” provision imports Illinois state privilege law into federal courts in Illinois or because records of such patients are deserving of privilege protection based on the reasoning in Jaffee.  A three judge panel of the 7th Circuit has rejected both rationales.  In its decision (full text), the panel  denied Government access to the records based on the more common “undue burden” provision of the Rules of Civil Procedure.

January 9, 2004 — Eighth Federal Circuit Rules on “Confrontation Clause Issue” — A defendant convicted of first degree murder attempted to impeach the only eye witness by gaining access to that witness’s psychotherapy records.  In Newton v. Kemna, the Eighth Federal Circuit ruled (Full Text) that the defendant may not invoke a 6th Amendment “confrontation clause” right to access the records because the witness’s Jaffee privilege is “absolute,” i.e., not subject to case-by-case balancing.  The court also ruled that the Supreme Court’s no-balancing decision in Jaffee means that an in camera examination of the records to determine their possible relevance is not allowed.

August 22, 2003 — U.S v. Chase Ninth Circuit Ruling on “Dangerous Patient Exception” Reversed! — The United States Court of Appeals for the Ninth Circuit after an en banc rehearing of its earlier decision in U.S. v. Chase, has RULED (Full Text) that there is no so-called “dangerous patient exception” to the Jaffee privilege. The effect of this ruling is to protect the patient’s communications to a therapist from forced disclosure in open court even if the therapist has issued a”Tarsoff-type” warning. There is now only one circuit on record on the side of such an exception to the privilege and there are two against such an “exception.” (see below)
[Despite the new ruling, Chase’s conviction was not reversed.]

August 21, 2002 — Another Appellate Ruling on “Dangerous Patient Exception” — In the case of U.S. v. Chase, the United States Court of Appeals for the Ninth Circuit has ruled that there is a dangerous patient exception to the Jaffee privilege, adopting a position opposite to that taken by the 6th Circuit in U.S. v. Hayes. In the three Appellate rulings on this issue so far, the opinions have been: two in support of an exception (U.S. v. Chase and U.S. v. Glass) and one holding that that there is is no such exception (U.S. v. Hayes). The issue in large part revolves around the meaning and intent of the so-called “Jaffee footnote” (footnote 19).

August 14, 2002 — HHS Publishes Final Privacy Rule — Following its proposed revisions to the HIPAA Privacy Rule, HHS published the FINAL Privacy Rule in the Federal Register. The stringent protection for “psychotherapy notes” based on Jaffee remains undisturbed. The starting enforcement date for the Privacy Rule is April 14, 2003.

April 14, 2001 — The HHS Privacy Rule Becomes Effective — Despite strenuous lobbying efforts by certain health industry participants, President Bush decided to allow the final HHS Privacy Rule’s effective date to remain undisturbed. Therefore, the final Rule, including the stringent protection of psychotherapy information based on the Jaffee privilege, takes on the force of law as of April 14, 2001. The “enforcement date” is two years later.

March 20, 2001 — Widening the Privilege — The Federal Court of Appeals for the 9th District has ruled that communications between an unlicensed EAP counselor and a patient are protected from compelled disclosure by the psychotherapist-patient privilege established in Jaffee. The Court took note of the increasing number of employees who must see an EAP counselor as a prerequisite to entering third-party paid psychotherapy. The Court also noted that EAP counselors frequently receive sensitive information from patients under a presumption of confidentiality, in the same sense that psychotherapists do. See Oleszko v. State Compensation Insurance Fund.

January 18, 2001 — The Outer Limits!! — In what has to be the broadest imaginable application of Jaffee, a Lower U.S. Court has held that the federal psychotherapist-patient privilege protects the medical records of a general practitioner simply because the record mentions the patient’s mental state. The patient did not have a mental diagnosis, and was not in “psychotherapy.” See Finley v. Johnson Oil Co.

December 28, 2000 — HHS Final Privacy Rule Published — The U.S. Department of Health and Human Services publishes “Standards for Privacy of Individually Identifiable Health Information; Final Rule” in the Federal Register. In the light of the Supreme Court’s ruling in Jaffee v. Redmondthe Rule extends stringent protection to “psychotherapy notes” which goes far beyond the protection extended to all other medical information.
The final Rule (which becomes binding in April, 2003 — changed from February, 2003 by order of HHS, 02/26/01) makes it illegal for an insurer to condition the sale of a policy or payment of claim on a patient’s agreement to allow disclosure of psychotherapy notes. The fly in the ointment: a lack of clarity as to what information an insurer will be able to demand, i.e., how the Rule will be interpreted by those who are charged with its enforcement — and by the courts. This issue will be the next battleground in the protection of genuine confidentiality for psychotherapy.
A summary of all the Rule’s provisions relating to psychotherapy notes, as well as links to the entire Rule and information about plans for enforcement, are HERE.

September 14, 2000 – U.S. Court of Appeals for Sixth Circuit Holds That There Is No “Dangerous Patient” Exception to the Jaffee Privilege — In the case of U.S. v Hayes a Federal Appellate Court ruled that there is no “dangerous patient exception” to the federal psychotherapist-patient privilege. In a powerful ruling the Court held that the so-called “Jaffee footnote” (footnote 19) has been misunderstood to suggest that such an exception exists. Rather, the Court held, the footnote means only that a psychotherapist may testify without the patient’s consent to prevent imminent harm. The ruling makes plain that even if a state law creates a “duty to warn,” under which a warning may be given to avert harm, that does NOT mean that the therapist may subsequently testify against the patient without the patient’s consent

August 18, 2000 – U.S. Court of Appeals for the 8th Circuit Holds That a Patient “Waives” the Privilege by Placing Mental Condition “At Issue” — In the case of Schoffstall v. Henderson a Federal Appellate Court ruled that a patient waives the federal psychotherapist-patient privilege by placing her mental state at issue in a claim. This is the first ruling at the appellate level on this issue. Lower federal courts are divided on the issue. See, for example, Vanderbilt v. Chilmark.

 December 3, 1999 – U.S. Surgeon General Report on Mental Health in America — This important document contains a chapter on confidentiality (chapter 7) which begins with a quotation from the Court’s opinion in Jaffee. The section of the report on disclosure to third party payers points out that current state laws are too permissive.  The report suggest as a model the very protective 1984 New Jersey statute which prohibits disclosure of psychologist-psychotherapist information to insurers. This statute is based on the District of Columbia 1978 Mental Health Information Law which extends strong protection to the patients of all psychotherapists in the District. (Federal Employees are not protected.)

November 3, 1999 – U.S. Department of Health and Human Services Issues Proposed Rules for the Privacy of Electronic Health Information —  In this extremely complicated and detailed proposal, HHS has established very special powerful protection for “psychotherapy notes.”  Quoting extensively from the Jaffee opinion, HHS proposed to make it illegal for an insurer to sell an insurance policy in which the psychotherapy coverage requires the patient to agree to the disclosure of psychotherapy information. The proposed rule also makes it illegal for an insurer to refuse to pay a claim because a patient doesn’t agree to disclosure of such information.

October 7, 1999 – President Clinton Establishes Jaffee-like Privilege for Military Personnel under UCMJ — President Clinton announced that by executive order he is establishing a psychotherapist-patient privilege for military personnel. The privilege has several stated exceptions tailored to the needs of the armed services. See also.

September 10, 1999 – Federal District Court Decides that Waiver is to be Interpreted Narrowly — A Federal District Court decision has held that the simple fact that a patient has entered her mental condition into issue in case does not in itself constitute a waiver of the Jaffee privilege. Although 6 post-Jaffee decisions have taken the opposite stand, the more recent cases seem to by taking a more narrow view of the waiver.  The “score” is now 6 to 4. [Booker v. Boston 1999 wl 734644]

August 19, 1999 – U.S. Court of Appeals for First Circuit Establishes First Exception to New Privilege — Following the Supreme Court’s paralleling of the Jaffee privilege with the attorney-client privilege, the Court ruled in In Re Grand Jury Proceedings (Gregory P. Violette). that the Jaffee privilege is subject to a narrow “crime-fraud” exception similar to that in the attorney-client privilege.

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