Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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D. The Psychotherapist-Patient Privilege (710)

The scope and content of evidentiary privileges for communications by patients to mental health professionals or physicians vary greatly among the American jurisdictions. Many of these "privileges" are included with duties of professional confidentiality created by professional licensing statutes or codes of ethics. These provisions are under constant revision and amendment as various forms of psychological, personal, marital, parental, guidance, and other counseling gain professional status.

The proposed Federal Rules of Evidence as adopted by the Supreme Court contained a broad psychotherapist-patient privilege limited to licensed physicians when in the practice of psychotherapy and licensed psychologists. This privilege was not enacted by Congress, thus leaving the existence of any privilege in federal court to the common law.

Problem - Confidential Counseling (710)

Answer and Analysis:

This problem can be used to introduce some of the issues raised by a psychotherapist-patient privilege. They include:

1) Who should be covered by the privilege? Any advice-giver would say that confidentiality fosters frank discussion, which in turn promotes good advice. Is a "licensed counselor" the kind of professional who needs such confidentiality in order to assist patients. What is the relevant professional difference between a psychiatrist, a psychologist, a psychiatric social worker, a "family counselor", a drug therapist, etc.?

2) What are the reasonable expectations of the patient? Dies the patient expect that communications will be confidential?

3) How broad a blanket would such a privilege spread? What are the logical or defensible limits?

4) Should there be a distinction between testimony about communications and disclosure of records?

5) Should there be any "escape hatch" permitting the breach of the privilege under extraordinary circumstances? (Many state "privileges" in licensing legislation contain provisions that authorize disclosure by court order under circumstances where an injustice would otherwise occur.)

Jaffee v. Redmond, 518 U.S. 1 (1996)

This case represents the adoption of a broad psychotherapist-patient privilege as a matter of federal common law. Significant features:

1) This was a very sympathetic case for adoption of a privilege. The person seeking protection was not a person accused of some serious crime, but a police officer sued by the family of a criminal suspect fatally injured by the officer in the course of her duty.

2) The court extended the privilege to a licensed clinical social worker. The test was more functional than professional.

3) The protection afforded was absolute rather than qualified. Although the court noted that a qualified protection is not much better than no protection at all as far as the patient's expectations of confidentiality are concerned, the Jaffee decision does create a different social worker privilege for state and federal court in Illinois, thus making the confidentiality of the communication depend on the court in which the case is pending.

Commonwealth v. Fuller, 423 Mass 216, 667 N.E. 2d 847 (1996)(720)

This is a case where it was asserted that maintenance of a privilege for a rape-crisis counselor would deprive a criminal defendant of his constitutional right to obtain evidence for his defense. Although the statute providing for confidentiality of the records was absolute on its face, the court applied an implicit exception for materials needed by the criminal defendant to prepare his defense. In the context of rape crisis counselling, the conflict is particularly sharp.

The solution adopted by the court, while perhaps the best available under the circumstances, compromises both the protection afforded the victim and the defendant's opportunity to prepare his case. The requirement that the defendant make a particularized showing to gain access to information about the alleged victim that would ordinarily be expected to be at least relevant to developing a better defense is a serious threshold. And having the material subject to in camera inspection by a judge is scarcely the same as having it accessible to an energetic and imaginative counsel. On the other hand, it is hard to imagine how a rape crisis counselor could give much assurance of confidentiality to a person seeking help. "Our conversations and records will remain confidential unless your assailant makes out a case for needing them for his defense...??"

In Re Grand Jury Proceedings (Gregory P. Violette), 183 F. 3rd 71 (1st Cir 1999)(726)

In this case the First Circuit finds a "crime-fraud" exception to the Federal psychotherapist-patient privilege. The reasoning of the court analogizes to the well established crime-fraud exception in the lawyer-client privilege. The absence of either a common law or statutory pedigree for such an exception to privileges for doctors and mental health professionals suggests caution in delineating such an exception in general terms. While the facts of the particular case, in which the psychiatrists were possible unwitting tools in a scheme of insurance fraud, might seem to be compelling, it is easy to imagine circumstances under which communications to doctors should be treated differently than communications to lawyers for purposes of such an exception.

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