The American Psychoanalytic Association, together with its allies in the Psychoanalytic Consortium (Division 39 of the American Psychological Association, the National Membership Committee on Psychoanalysis in Clinical Social Work, and the American Academy of Psychoanalysis), has filed a brief with the U.S. Supreme Court in a major case dealing with the issue of the confidentiality of psychotherapy.
A specific issue in the case, Jaffee v. Redmond, is the question whether, under the rules of evidence obtaining in federal courts, the communication between patient and psychotherapist should be treated as privileged. If the treatment relationship is granted privileged status, the patient can prohibit the testimony of the therapist. Otherwise, the therapist can be required to turn over all records and to testify as to the contents of the treatment, even if the patient objects.
Currently, unlike the laws that grant privileged status to the psychotherapist-patient relationship in state courts, the rules of evidence in federal courts do not specify such a privilege.
In the Jaffee case, a female police officer in Illinois shot and killed a suspect while on duty. Because of the emotional distress she experienced following the incident, she sought psychotherapy with a psychodynamically trained social worker employed by the village for which she worked. The officer was seen two or three times a week over a period of six months.
Relatives of the deceased sued the officer and the village that employed her. Because it was claimed that the civil rights of the deceased had been violated, the case was taken up in federal court. Had the case gone to an Illinois state court, there would have been no question as to the privilege granted the therapy relationship, as Illinois law is particularly strong and specific on this point.
However, because the case was in federal court, the status of the privilege became uncertain. Under current federal rules of evidence, each claim of privilege by a witness is to be decided by the trial judge using “reason and experience” in applying common law. In the case of the psychotherapist-patient privilege, a series of such cases have been decided inconsistently in various federal jurisdictions.
At trial, the officer's therapist defied the judges instruction, refusing to produce her notes or to testify as to the content of the therapy without the patient's consent. The judge then instructed the jury that it could assume that the content of the therapy would, if known, undermine the defendant's position. This evidently contributed to a finding against the police officer and the village. This decision was reversed in the Federal Appeals Court for the Seventh Circuit, which supported therapist-patient privilege in a strongly worded opinion.
Plaintiffs then took the case to the U.S. Supreme Court, which accepted the case because similar cases had been decided inconsistently in other federal districts. Several professional organizations, including the American Psychiatric Association, the American Psychological Association, and the National Association of Social Workers have all filed briefs in the case.
A legal team from the Washington firm of Sidley & Austin, led by Rex E. Lee, current president of Brigham Young University and former U.S. Solicitor General, prepared the Consortium's brief. The team advised the Consortium to stress the unique psychoanalytic point of view of its member organizations rather than to duplicate material presented by other groups, material that would likely set forth more generic arguments for the protection of confidentiality in helping encounters. The courts, counsel explained, are very grudging in expanding the range of privilege, because the legal system places such a high value on having available every possible source of information that might weigh in a decision. Nevertheless, in the late 1960s and early 1970s the Supreme Court proposed, and Congress considered, a rule of evidence for federal courts which, if enacted, would have extended very strong protection to “psychotherapy.” Unfortunately, the proposed rule was not approved by Congress.
It should be noted that up through the 1960s a substantial part of the rationale for the proposed rule granting privilege to the psychotherapist-patient relationship was based on the technical requirement in psychoanalysis that the patient disclose all thoughts to the analyst without restraint. In those days, “psychotherapy” was often thought of as synonymous with “psychoanalytic therapy.” Since the issue was last visited by the Supreme Court in the early 1970s, however, there
Paul W. Mosher, M.D., chairs The American's Joint Committee on Confidentiality.
has been enormous growth in a variety of nonanalytic therapies, some of which may have a much less compelling case for confidentiality than has psychoanalytically informed work, but which nonetheless are referred to under the now generic term psychotherapy. Hence, a failure to differentiate in this area might weaken the case for privilege. (For instance, if a patient consults a behavior therapist for deconditioning of a fear of mice over six sessions, it could be argued that the level of disclosure required is not substantially different from that in the relationship between a patient and a dentist; in the minds of some legal authorities, such a relationship should not be granted any privilege at all.)
An attempt was made in the brief, therefore, to show the crucial dependence of psychoanalytic therapies on the protection of the treatment relationship from intrusion. Finding terminology that would be reasonably consistent with the at times divergent views of Consortium members, and yet intelligible to the legal community, was a real challenge, especially since the legal team and Consortium representatives were working against an extremely tight deadline.
An ad hoc panel of members selected by Judith Schachter put in considerable time reviewing a draft of the brief during the December meeting in New York and a subsequent draft the week following. The brief was filed with the Court by the January 2 deadline. The full text is available to the public on The American's World Wide Web site (http://apsa.org/).
There is no way to know whether the brief will influence the Court in its deliberations or will be reflected in any of the opinions that might be written. After all, analysts are but one voice in a very large crowd. However, the submission of this brief clearly and dramatically asserts the commitment of The American, and of the other members of the Consortium, to the principle of protecting the confidentiality of the psychoanalyst-patient relationship.