My involvement with confidentiality laws began in 1969, when I was served with a subpoena to appear in court with my records on a former patient. She'd been hit by a car while parked in a mall parking lot. She sustained a vertebral fracture and was suing for damages for physical injuries and “pain and suffering.”
At that time, a claim of “pain and suffering” constituted having brought one's “mental condition” into issue, and thereby rights to confidentiality and privilege automatically were waived. My patient also had given consent for access to my records, believing I would be questioned only about her back injury.
I called to explain that once privilege had been waived, I could be asked any question about her treatment, and reminded her she was considering a divorce and my testimony could complicate her future legal position. She demurred, so I hired my own lawyer to convince her lawyer to withdraw the “pain and suffering” claim. This was very expensive, but I realized that any patient who came for psychotherapy in Illinois jeopardized his/her rights to legal redress.
If my patient hadn't been in psychotherapy, she'd have had a simpler claim for pain and suffering. Thus Illinois law tended to discourage access to psychotherapy and thereby constituted a hazard to my patients and to my profession. This law had to be remedied.
I sought the support of the Illinois Psychiatric Society and the Illinois State Medical Society, which made their lobbying apparatus available. My lobbyist introduced me to key legislators and steered me through hearings before the Illinois House of Representaives and various state House and Senate committees.
Our strategy was to ask for a revision of the definition of “pain and suffering” and also for privilege for both psychiatrist and patient in divorce cases based on “mental cruelty.” The current law tended to foster divorce, in that an intelligent couple having marital problems would be discouraged from seeking therapy if they knew the content of treatment could be disclosed in court.
The Illinois legislators agreed to a welcome compromise in response to my last minute, “save the day” deliberate shouting of my objections to an adverse step they were about to take. The new law provided that privilege of psychiatric communications would prevail in a divorce action “unless the patient or the psychiatrist on behalf of the patient first testifies as to such communications.” This was a first step. In the meantime, two Illinois Appellate Court decisions established that “pain and suffering” did not constitute bringing “mental condition” into issue, thus correcting the problem brought by my former patient. Subsequently this proviso was included in later revisions of the confidentiality law.
By 1975 I found myself chairman of newly formed Committees on Confidentiality of both the American Psychiatric Association and the American Psychoanalytic Association. For the next twenty years I was intensely involved on legislative fronts. When I was president of the Illinois Psychiatric Society (1977–79), I worked closely with our current mayor, Richard M. Daley, who was then a state senator and chair of a task force to re-write the Illinois Mental Health Code. In Springfield we often worked until midnight.
With the help of Sandra Nye, a Chicago social worker and lawyer; we introduced such innovations as the undiscoverability of a psychotherapist's “personal notes,” containing his/her private speculations, observations, and third-party information given in confidence. There have been many judicial verdicts affirming the validity of the concept; Illinois is the first of only two states recognizing “personal notes.”
We also introduced the concept of a psychotherapist's privilege separate from the patient's, when it is exercised “on behalf of and in the interest of the ‘recipient.‘” Illinois is still unique in this proviso. It was designed to cover cases where patients agree to disclosures that the therapist deems to be against the patient's interests; it is also designed to protect the therapist's privacy.
Also of great significance, we introduced the Illinois state law regarding dangers arising from the Tarasoff warning. (Following the 1976 California judicial decision that came to be known as “Tarasoff”, which required mandatory warning of the presumed intended victim of a patient's aggression, each state eventually enacted its own version). Under the Illinois law, the warning is made solely at the therapist's discretion, thus retaining clinical criteria, compared to unrealistic mandatory warnings commanded in other states.
Nye also was instrumental in broadening the definition of “psychotherapist” to include anyone whom the recipient “thinks” is a therapist. She also made sure social workers were included in the definition, which would prove crucial in 1996 in Jaffee v. Redmond.
Nye was the pro bono lawyer to the American Psychiatric Association's Committee on Confidentiality. We used the Illinois statute to design a model state statute on confidentiality, which was adopted by the APA as its official policy in 1979. During 1978–1979, I also worked with Bert Jenner (of the Chicago law firm of Jenner and Block), who was chair of a special committee to rewrite the Federal Rules of Evidence. At this time, there was no federal confidentiality law. We designed such a rule (Rule 504), but Congress wouldn't enact it because of the reluctance to loosen surveillance during the Cold War.
As part of the APA's effort to have Congress pass a national confidentiality law, the APA Division on Government Affairs, chaired by Jay Cutler, arranged for me to testify in 1978–1979 before two Congressional committees and President Carter's Presidential Commission on Privacy. Rep. Ed Koch (D-N.Y.) of the commission tried to help us, but advised us prospects were untimely.
Through the APA's Commission on Judicial Action (which chooses federal appellate court and Supreme Court cases in which to participate with amicus curiae briefs) we became involved in Whalen v. Roe regarding the privacy of triplicate prescriptions in New York State. Our pro bono counsel was Joel Klein.
Jerome S. Beigler, M.D. is a member of the faculty and a supervising analyst at the Institute for Psychoanalysis, Chicago, and a lecturer at the University of Chicago Medical School.
(He later became counsel for both the APA and APsaA. In 1989 he skillfully saved our future in the suit brought by the psychologists.) The U.S. Supreme Court's 1977 decision in Whalen v. Roe established the need for the confidentiality of prescriptions and required New York to demonstrate adequate protections.
Only in 1996 with the Jaffee v. Redmond case was a federal standard on the confidentiality of “psychotherapy records” established. It became the crowning achievement of the long struggle for mental health confidentially by the APA and the APsaA.
Redmond was an Illinois police officer who shot and killed a man in the line of duty. She was so upset by the event she went to a social worker for therapy. The family of the dead man (Jaffee) sued the village and officer Redmond for wrongful death. Because a municipal entity was involved, it became a federal case. The plaintiff subpoenaed the social worker's therapy records, which she refused to release for reasons of confidentiality.
The jury returned a large judgment for the plaintiff. The defendants appealed to the U.S. Appellate Court, which reversed the verdict and remanded the case for retrial. The plaintiff appealed to the U.S. Supreme Court, which accepted the case because appellate courts across the country disagreed about such cases.
This was an ideal case in which to argue for confidentiality. A police officer had been disabled in the line of duty. She required psychotherapy to enable her to return to work. She couldn't benefit from psychotherapy if there weren't complete confidentiality. The state of Illinois had a strong statute protecting the confidentiality of psychotherapy records, including the records of social worker therapists.
Eighteen national organizations (an unusually high number) filed amicus briefs supporting confidentiality. At the hearing, Justice Ginsburg seemed well-informed and supportive; Justice Scalia was derogatory and wondered if talking to one's mother also required a confidentiality law. In early 1996 the court handed down a seven to two decision in favor of confidentiality and remanded the case for retrial.
The Court declared that psychotherapy could not be administered without complete confidentiality, which in itself was a monumental achievement, but then it made a statement that no one had anticipated: Not only must confidentiality be observed in the current action, but there can be no future balancing (should there be countervailing future circumstances) because if there are potential future exceptions, there is no current confidentiality. In other words, confidentiality in therapy is an absolute privilege akin to the lawyer-client privilege. [Ed. note: see TAP 34/3 for social worker Karen Byer's first person account of the Jaffe case.]
Since 1996 there have been many exciting developments. Two hundred cases have been decided in various courts supporting, extending, and defining confidentiality as a prerequisite for effective psychotherapy. The insurance industry, managed care organizations, and the hospital industry continue to resist implementation of effective confidentiality rules.
The purpose of protecting confidentiality is not only to enable effective psychotherapy for our patients and profession, but more importantly to treat our citizens with respect for their privacy and dignity in the interest of fostering our democracy.