“Judge Bars Testimony of Three Psychiatrists in Murder Case,” the New York Times reported on September 13, 2000. The American Psychoanalytic Association joined the New York State Psychiatric Association (NYSPA) in filing as amici curiae in The People of the State of New York v. Robert Bierenbaum, a case of some national notoriety. Robert Bierenbaum was treated by three psychiatrists seventeen years ago and was on trial, accused of the murder of his wife. He was eventually convicted.
The amicus brief, which influenced the judge's ruling to bar the psychiatrists' testimony, was concisely and brilliantly written by Seth Stein, legal counsel and executive director of NYSPA. It argued that the “Court should exclude from consideration the medical records of the defendant and statements made by the defendant to his psychiatrists during the course of his professional relationships” seventeen years ago. The prosecution had argued that a Tarasoff-type warning to the wife in 1983 — that she was in danger from Bierenbaum — resulted in a waiver of his confidentiality and privilege, and that statements made by Bierenbaum to friends and family also constituted a waiver.
The judge's ruling in Bierenbaum sharpens the impact of the landmark 1996 Supreme Court decision in Jaffee v. Redmond. Although the 1996 ailing only applies to federal courts, the ruling in Bierenbaum is an example of how the Supreme Court's decision has reverberated in all jurisdictions.
The Supreme Court ruled for the existence of a psychotherapist-patient privilege, like attorney-client privilege, and rejected the concept that there should be a balance between the truth-finding functions of the court and psychotherapist-patient privilege. The Supreme Court stated that
the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. … An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.
Dick Fox, president of the American Psychoanalytic Association, wrote in the New York Times on September 18 that “the emphasis in the Supreme Court's decision is critical in insuring
the confidentiality of psychotherapy against ‘competing interests.’”
Stein told the Times:
When a doctor makes a [Tarasoff-like] warning, he's violating confidentiality for a certain purpose and a certain period of time. And once that purpose and period of time have elapsed, the privilege is fully restored. The goal of the warning is to protect people, not to prosecute them, and if that balance were changed, patients would be far more reluctant to discuss their violent thoughts and feelings.
Particularly gratifying was the rapidity with which the American mobilized its forces to insure that a brief would be filed in timely fashion. Fox summarized the feelings of all those involved in this effort on the APsaA members' electronic mailing list:
Our recent success in filing an amicus brief defending therapist-patient privilege was a furtherance of our efforts supporting the Jaffee-Redmond decision. It came about as the result of a genuine team effort by the number of our members who helped define, coordinate and implement our action. In contrast with the Jaffee-Redmond initiative which occupied several months, this time we had fewer than five weeks to accomplish our goal, and this during the month of August! Many of us spent the major part of Labor Day weekend reviewing and criticizing the draft of the brief to meet the Tuesday deadline.
Leon Hoffman, M.D., is a member of the Committee on Confidentiality and author of one of the first articles that stressed the need to generalize the Jaffee v. Redmond decision (“Psychotherapy Privacy at Risk,” published in the Wall Street Journal in November 1996).