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

Discussion of Dr. Norman A. Clemens’ presentation on “Documentation of Psychotherapy”. At the American Psychiatric Association Meetings, Chicago, Ill., Thursday, May 18, 2000

By Barry J. Landau, M.D.*

The Supreme Court decision in the 1996 Jaffee v. Redmond case, to create an unconditional (“absolute”) psychotherapist-patient privilege in federal courts, on a par with the attorney-client privilege, was a decision of major significance, the full implications of which have been difficult to grasp and fully utilize by psychiatrists and lawyers alike.

To clarify why I call this decision one of major significance, I first cite the fact that the Court is loathe to create new privileges because each new privilege undermines the search for truth – the availability of “every man’s testimony” – that is the basis for a fair trial. The conclusion by a 7-2 majority of the Justices was that the availability of confidential psychotherapy was of sufficient value to the public good to warrant the granting of such a privilege, even though it could mean the loss of relevant evidence.

Secondly, in granting an unconditional (absolute) psychotherapist-patient privilege, the Court granted a much stronger privilege than any of the three lawyers, arguing the case before it, had requested. In doing so, the Court recognized that psychotherapy, to be effective, requires complete disclosure of the most intimate and private thoughts, feelings, dreams and fantasies during the course of therapy. As a result, the Court concluded, “the need for absolute confidentiality is a “sine qua non” of effective psychotherapy.” Justice John Paul Stevens, in his majority opinion, pointed out that “the mere possibility of disclosure would undermine the confidentiality necessary for effective psychotherapy”(emphasis added).

Dr. Clemens explicitly acknowledges the dilemma involved in documenting psychotherapy in the official medical chart. He says in his opening remarks: “The issues . . . highlight an irreconcilable conflict between two important principles. On the one hand, medical-legal principles indicate that the medical record should be complete, factual, and accurate. On the other hand, the growing vulnerability of medical records necessitates great circumspection about what to write in an official medical record, lest this expose the patient to a breach of privacy and confidentiality, that would undermine the psychotherapy and harm the patient.”

The solution to this dilemma, proposed by Dr. Clemens and the APA Commission on Psychotherapy by Psychiatrists, is to make a distinction between what might be called the medical, or objective, elements of the psychotherapy, on the one hand, from the personal contents of the psychotherapy, on the other hand. Thus, for example, Dr. Clemens tells us to document clinical observations, such as physical findings and mental status exam, laboratory tests, medications, and other facets of “psychiatric management”; but not to document the process or the content of the psychotherapy.

Such a distinction has a great deal of merit. But many problems remain. For example, Dr. Clemens’ recommendations do not consistently adhere to this dichotomy. Under Psych. Mgt. I, he recommends including events in treatment or in the patient’s life, as well as the results of psychological testing. Similarly, the items listed under Documenting Psychotherapy Sessions, for medicare and other third parties, includes “pertinent themes discussed, ?content notes, and details of the exchange [between patient and psychiatrist].” These are very private kinds of information that must not be included in a record that may be audited by third parties, such as Medicare, lawyers, etc., without risking irreparable harm to the confidentiality of the treatment.

These inconsistencies illustrate a point made by Justice David Souter, during the oral argument of the Jaffee v. Redmond case. The plaintiff’s lawyer said that he was not seeking information about the personal feelings from the patient’s therapy; just factual statements relevant to the case. Justice Souter pointed out that this distinction can be difficult to maintain in practice, and illustrated this point with the following question: “What if a patient says [to the psychotherapist], ‘I feel bad about killing someone.’ Is that a statement of fact or feeling?” Justice Souter asked.

The Supreme Court’s response to this dilemma was to make all of the patient’s communications to the therapist privileged. The message for us with regard to charting is that, taking any other stand leads us down a slippery slope resulting in the erosion of our patient’s confidentiality and to the serious compromise of psychotherapy, which requires, as Justice Stevens noted, “absolute confidentiality” in order to be effective.

But if so, then how do we reconcile the need for this level of confidentiality with the demands of third party payers, lawyers, police organizations, etc? As Paul Mosher (1999) pointed out, in his thoughtful and scholarly paper on the history leading up to the Jaffee v. Redmond decision [currently available on a Jaffee v. Redmond web-site, created by Dr. Mosher], we have much to learn from the legal profession in regard to how lawyers maintain the confidentiality of their clients. For example, Mosher cites the Legal Services Administration, a federally funded program to provide legal representation to financially disadvantaged clients. When that program is audited by the Government, the law requires that this be done in a way that does not intrude on the attorney-client privilege.

Another instance of what can be done is a series of practice guidelines by The American Psychoanalytic Association that, for example, supports only confidential peer review when a third party payer questions the appropriateness of a psychotherapeutic treatment.

These are but two models that can be considered. In the Jaffee v. Redmond case, there were amicus briefs submitted by the American Psychiatric Association and other mental health professional organizations. The outcome was a smashing success, which demonstrates that, when mental health organizations get together and clearly and forcefully articulate the needs of their patients, they can get a respectful and meaningful hearing.

A particular confluence of events make the current time one in which there is both an opportunity as well as a necessity for the American Psychiatric Association to make major new initiatives to protect the confidentiality of our members’ patients. The valiant efforts by Dr. Clemens and The Commission on Psychotherapy by Psychiatrists to help APA members contend with the multitude of demands for access to psychiatric records illustrates the dire situation that is developing right before our eyes. For example, auditing of psychotherapy records by government agencies would have been unthinkable only a very few years ago.

At the same time, Chapter 7 of the Surgeon General’s report, devoted to the confidentiality of psychotherapy records, begins and ends with quotes from the Jaffee v. Redmond decision in favor of the confidentiality of psychotherapy. As Paul Mosher pointed out in an unpublished communication, the Surgeon General specifically endorsed the New Jersey confidentiality law, which goes a long way toward protecting the confidentiality of psychotherapy records. There is a law offering similar protections in the District of Columbia, which is largely based on an APA model law, developed in 1972, and on work by APA members Jerry Beigler and Harold Eist. Even the recently published Health and Human Services medical privacy proposals, while truly frightening in their dismissal of the medical patient’s right to informed consent over disclosures about health information, nevertheless acknowledges the Jaffee v. Redmond decision and the need for a higher level of confidentiality protection for psychotherapy notes.

In closing, I want to mention a brief exchange between Justice Stephen Breyer and the attorney for the plaintiff at the very end of the Oral Argument of the Jaffee v. Redmond case. Justice Breyer asks: “Why has it never arisen . . . Has no one ever tried to subpoena medical records from a hospital or a medical doctor’s private records?” Plaintiff’s Attorney: “We don’t face that problem because the district judges uniformly say there’s no privilege. If it’s relevant -” Justice Breyer: “But wouldn’t you think that some doctor somewhere or a hospital somewhere would have faced a subpoena for some confidential patient records and would have asked us?” Plaintiff’s Attorney: “That just hasn’t happened, it’s just routinely accepted.”

The oral argument ends at this point. But I wonder whether there could be a message for us here. I believe that Dr. Clemens’ thoughtful presentation at today’s workshop gives us the opportunity to take a second look and ask ourselves: “Have WE begun to routinely accept practices that we need to be questioning more vigorously?”

Thank you.


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