Since mid-1968, the case of Joseph E. Lifschutz, M.D., a member struggling in California and Federal Courts to find acceptance for his position as regards the application of the “physician-patient” privilege to psychotherapists, has evoked the interest and often the concern of psychiatrists, psychoanalysts, and other psychotherapists. Dr. Lifschutz and his records were subpoenaed by the Superior Court of the State of California to offer testimony about a person who stated that in the past he had been Dr. Lifschutz's patient. Under California law — as in several other States — the physician-patient privilege prevents the introduction into evidence of information transmitted between a doctor and patient (including diagnoses and advice) without the consent of the patient.
There is no privilege, however, with respect to information relating to an issue concerning the condition of a patient if such issue has been raised by the patient himself. By raising such an issue the patient in effect waives the privilege. Thus, if a plaintiff in a civil suit claims damages for physical injury and mental or emotional stress (as in the Lifschutz case), he has no privilege: he must submit to an untrammeled review of his medical record, and physicians and psychotherapists or others who have treated or examined him may be called by the court and required to testify. (Such a requirement appears reasonable. Without it, a man with a prior history of recurring backache might easily enter an unjustified but persuasive claim that his current pain is solely the result of a purported recent injury.)
In those states recognizing it, the physician-patient privilege, like the related attorney-client privilege, belongs solely to the patient or client, and not to the physician or the attorney. On the other hand, the priest or clergyman has long been invested with a particular privilege of his own: he may not be required under law to divulge information received in confidence from a penitent or parishioner. Dr. Lifschutz believes for professional reasons that the psychotherapist should be accorded a privilege similar to that of the clergyman. He holds, indeed, that without such privilege, the psychotherapist cannot practice his profession, for he contends that absolute confidentiality is of its essence.
Initially, he asserted that the waiver required by California law could be neither free nor informed, since the patient could not know what might be in the psychotherapist's records. He refused therefore to so much as identify the plaintiff as once having been his patient; he submitted that for the purposes of the Court a current evaluative and diagnostic interview by a psychiatrist would suffice; and he sought review and confutation of the constitutionality of the waiver provision.
The matter was carried to the Supreme Court of the United States which, in the autumn of 1969, declined to review the case. The Supreme Court's action at that time does not foreclose the possibility that after subsequent state court proceedings, the matter will again reach the Supreme Court.
Even at this juncture Dr. Lifschutz maintained his silence. At a hearing before the California Superior Court on Friday, December 5, 1969 he was found in contempt, and was immediately jailed in a fashion and under conditions that evoked shock and dismay among many. (It should be recalled in this connection that judges take a serious view of an action that they deem to be in contempt of court.)
On December 8 Dr. Lifschutz was released, on a writ of habeas corpus, by the Chief Justice of the Supreme Court of California, which Court subsequently accepted the case for review. Should the California Supreme Court decide against him, Dr. Lifschutz may have to return to jail pending further review by Federal courts.
Dr. Lifschutz's position in relation to confidentiality and privilege is beyond any existing law, although his Counsel cites precedents involving physicians, psychiatrists, psychoanalysts, or psychotherapists. His case, as set forth in his Petitions to the Supreme Court is based primarily upon the 1965 Decision in Griswold v. Connecticut, which held that the First, Ninth and Fourteenth Amendments to the United States Constitution protect a physician in the exercise of his skills against statutes which on their face inhibit the physician's activities in giving medical assistance to his patients, as a class, according to ordinary methods of treatment prevalent in the art. Dr. Lifschutz's contention is, then, that the ordinary methods of psychotherapeutic treatment (which must be contrasted with evaluation and diagnosis) require absolute confidentiality.
Dr. Lifschutz's position, and his personal situation, have stimulated both hard thinking and strong feeling in the membership of the American Psychoanalytic Association. It has been difficult to find a clear exposition of the issues; it is hoped that this presentation will assist in so doing. It remains uncertain, moreover, whether a majority of the membership — there would surely be differences of opinion — would go further than the Resolutions adopted on May 4 at the 1969 Annual Meeting of Members, and sent to Dr. Lifschutz.
“Resolved: That the Membership of the American Psychoanalytic Association
affirms the necessity of confidentiality between patient and psychoanalyst.
“Further Resolved: That the Membership of the American Psychoanalytic Association adheres to the position that disclosure of communications from and to a patient impairs the ability of the psychoanalyst to serve his patient and to practice his profession.”
Dr. Lifschutz and his counsel have kept the Central Office, the Officers, and the Association's counsel informed of the progress of his case. When Dr. Lifschutz made his original Petitions to the Supreme Court of the United States, our counsel advised us that in their opinion the preparation and filing of an amicus curiae brief on behalf of the Association and in support of Dr. Lifschutz's position would not significantly add to the efforts already being made on his behalf. Should there come an appropriate time for other action, our counsel will advise us.
Many, clearly empathetic and sympathetic to Dr. Lifschutz's position and predicament, and appreciating the great financial burden he has incurred, will wish to contribute toward reducing his inevitably immense indebtedness, as yet but fractionally offset. As we stated in the memorandum of June 9, 1969, checks may be made payable to the Joseph E. Lifschutz Legal Fund, c/o the Northern California Psychiatric Society, 219 Tenth Avenue, San Francisco, California 94118.