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California courts. Illinois recognized this when their legislature almost eliminated entirely the patient-litigant exception (section (d) (3) in 504). They finally compromised for divorce and child custody cases (13). The California Supreme Court tried to correct this in its Lifshutz decision, but lower courts have been unable to apply the rule suggested. A substitute for Rule 504 (d) (3), patterned after Section 408 (b) (2) (C) of P.L. 92-255 might be more helpful to the courts (14). This section 408 has held up well in courts. Otherwise the ills already demonstrated by the operation of a blanket waiver will continue to plague the courts. It places the patient wise enough to seek help in a position unfavorable to those who needed but avoided such help (15). The rights to the courts should not be conditional. It results in unequal application of the law. It has deterred people from seeking help as they pursue just claims. Evidence can and has been secured from sources other than the treating psychiatrist, but this has not stopped the inroads of confidentiality of the treatment relationship even in those states having protective privilege laws.
The argument presented that it permits scoundrels to hide behind the protection of the law (16) is a specious one. There are such cases. First, are the many to be harmed because of the few who may so try? Secondly, in each such case, there was a lawyer who took and filed the action before the physician was brought in. I leave the inference to you to avoid sticking my neck out any further.
To strengthen the lock even more, the original proposal for Rule 504 extended the protection to all physicians. In the few states having any protection it is limited to psychiatric physicians. The 504 wording in Section (a) "while engaged in the diagnosis or treatment of a mental or emotional condition" overlooks the frequent phenomenon that disclosure of a communication or finding of a condition might precipitate a mental or severe emotional condition, — sometimes if only revealed to the patient (e.g. labels of syphilis, gonorrhea, pregnancy, schizophrenia, latent homosexuality). I would suggest a modification of the wording to foresee these possibilities (17).
The question of extending the right to claim the privilege to the therapist is a moot point (see addendum). The protection is always of the patient and the patient's right. Extending to the therapist the right to claim the privilege seems indicated when the patient is incompetent to understand the consequences (e.g. mentally incompetent; having no knowledge of what he has actually communicated or therapist's observations and judgments withheld from patient because of patient's condition). Here we have a situation lacking informed consent. The other situation is where the patient's attorney is more concerned with a settlement (usually in contingency cases) than he is in what happens to his client. This latter is a question for the legal
profession to determine whether they want a physician to protect the client from his own lawyer. These situations do exist.
In summary I ask that you review the nature of the psychotherapeutic process; its dependence on trust that requires confidentiality; the nature of the evidence that would be labelled, used and misused as "fact" or "truth"; the availability of other sources of information. I also ask that you consider the effect of threatened exposure on those needing, seeking, or already in the process of treatment; in that light to recognize Wigmore's four postulates for privilege have been met even better for Rule 504 than for lawyer-client privilege. I would ask that you review the history of "ascertaining the truth in the courtroom" in juxtaposition to the protection sought by the framers of our Declaration of Independence and the Constitution. As a result I do hope you will restore a stronger lock for the protections in those documents by restoring a strengthened psychotherapistpatient privilege in the Federal Code of Evidence. I can do no better than to quote from David W. Louisell's review of opinions "... that whatever handicap privilege places upon adjudicatory process is not too high a price to pay for preserving inviolate certain essential relationships." (18) Preserving life, health and the pursuit of happiness should stand high in priority for such consideration.
Mr. Chairman, I also wish to emphasize to this committee that the inclusion of the psychotherapist-patient privilege can be inserted in addition to the traditional physician-patient privilege which must not be impaired in any way.
1. Committee on Rules of Practice and Procedures, Judicial Conference of the U.S., Preliminary Draft of Proposed Rules of Evidence for the U.S. District Courts and Magistrates, footnotes Rule 504 (1969, p. 53). 2. California, Connecticut, Florida, Georgia, Illinois, Kentucky, Massachusetts.
3. Slawson, P.F., "Patient-Litigant Exception," Arch. Gen'l Psychiatry 21:347; Sept. '69 Slovenko, Ralph, "Psychiatry and a Second Look at the Medical Privilege," 6 Wayne L. Rev. 175-188 (1960) - Robertson and Caesar cases that reached California Supreme Courts; references are not available but can be secured if needed.
4. re Lifschutz 2 Cal. 3d. 415, 467 P. 2d 557, 85 Cal. Rptr. 829 (1970); Roberts v. Sup. Ct. 9 C 3d. 337 (Calif. Sup. Ct. 4/11/73) — Louisell, David W. & Sinclair, Kent, Jr., "The Supreme Court of California," 1969-70," 59 Calif. L. Rev. 30, Jan. 1971.
5. "Confidentiality and Privileged Communication in the Practice of Psychiatry" Report No. 45, Group for the Advancement of Psychiatry, New York, 1960.
6. 8 Wigmore Evidence, Section 2285, p. 527 (McNaughten rev. 1961) (1) Originates in confidence it will not be disclosed.
(2) Confidentiality essential to the relationship.
(3) The relationship should be fostered for the welfare of society.
7. Plunknett, Theodore F.T., A Concise History of the Common Law 4th ed. 1948 p. 172. Webster's New International Dictionary of English Language unabridged, 2nd ed. 1960, p. 2458, G.&C. Merriam Co., Springfield, Mass.- Oxford English Dictionary, V.9, Pt.1, 1919, p. 833 ed. by Henry Bradley.
Slawson, supra 3, p. 352, quoting Lord Justice Knight Bruce. Doyle, Vincent, "The Privacy of the Individual," World Med. J. 21:p. 33 March April 1974, same quote.
9. Hickman v. Taylor, Jan. 1947, 329 U.S. 495, 67 S. Ct. 385 "Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and mental impressions of an attorney."
10. Federal Rules Civil Procedures, Rule 34 28 USCA.
11. Fastener Corp. v. Spotnails, Inc. D.C. Ill. 1967, 43 F.R.D. 204 U.S. v. Am. Optical Co. D.C. Cal. 1966, 39 F.R.D. 580.
12. See Ref. 10 supra notes to amendment March 30, 1970 Advisory Committee on Rules-"The revision of Rule 34 to operate extrajudicially rather than by court order reflects existing law office protocol" (emphasis added).
13. State of Illinois Statutes, Chapter 51, Evidence & Depositions, Section 5.2 (c) as amended 1971 — Beigler, Jerome S., "The 1971 Amendment of the Illinois Statute on Confidentiality: A New Development in Privilege Law," Am. J. Psychia. 129:3, p. 311, Sept. 1972.
14. In re Lifschutz supra 4, footnote 26.
Suggestion for wording 504 (d) (3) - "When patient injects the issue of his mental or emotional state as a claim or defense the privilege will be waived only if a court of competent jurisdiction considers there is insufficient necessary evidence from sources other than the psychotherapist. In assessing such good cause the court shall weigh the public interest in protecting such communications, and the need for disclosure against the injury to the patient, to the psychotherapist-patient relationship and the effect on the treatment process. Even so, disclosure must be directed at specific questions that need answers."
15. Roberts v. Sup. Ct. supra 4.
Grossman, Maurice "Proposed Federal Code of Evidence Rule 504Psychotherapist-Patient Privilege" Feb. 23, 1973, unpublished copy
16. Wigmore, supra 6, Section 2220, p. 183.
17. Suggested wording"... while engaged in the diagnosis or treatment of a mental or emotional condition, or receiving information that might precipitate a mental or severe emotional condition."
18. Louisell, etc. supra 5, p. 53.
ADDENDUM TO TESTIMONY
Case for the Psychotherapist Exercising the Right to
I would prefer to view the therapist exercising the right of privilege from another viewpoint, which was alluded to in Lifschutz's pleading, but received inadequate consideration in the Court's discussion of its decision. It would be based not on his rights, but on his obligation. Apart from his obligation to maintain a "safe atmosphere" for all prospective patients, he has an obligation to protect the individual patient even from the patient himself. The extreme case obviously is in the act of attempting suicide. But the same factors operate in other less manifest ways. This leads to my second approach to the problem.
The legal process sees every individual as competent to make decisions and therefore responsible for those decisions. Obviously, our society could not operate on any other basis. Yet the law recognizes that this is not so in certain circumstances. The gross circumstance of legal insanity and the resultant various complications of legal competence is the most obvious. The guiding principle rests on the relevance of the mental state to the act in question. The individual's mental ability to adequately judge and control his act is the guiding principle. In psychotherapy the patient is encouraged to drop all intellectual controls and to say anything that comes to his mind without censoring by reason or fact. In the process he drops all “adult,” “mature" controls and regresses to earlier childhood and even infantile states of thought production and their verbalization. He might then release immature, even irrational emotional urges, impulses and thoughts. More important, he might, and often does, associate these infantile resurgences to present day activities in his verbal productions in the therapeutic session. The examination of these irrational impulses in the light of rationality, with the therapist's help, is the important instrument in therapy. Sometimes there is a tendency for the patient to "act out" these irrational impulses in everyday life. There is a cardinal rule for patients to avoid committing themselves to any irreversible act while in therapy until the irrational elements are understood. The reason for this is that all patients in intensive therapy, and to some degree all patients in any
psychotherapy, regress to these earlier states of feeling, thinking, and even functioning. In the course of this they sometimes act as various members of their childhood family, as they saw themselves then, or as they fantasied themselves in wishful thinking.
In other words, encouraged to drop controls they regress to where these productions are neither wholly factual or within their reasoning control. The psychological processes of repression and defensive distortion are accentuated during therapy, and only the therapist stands as their protector against their irrational self. The patient endows him with the cloak of a benevolent, non-punitive, protecting parent. It is this role that permits him to be effective. It is this role he must not jeopardize.
The law recognizes that at certain ages children are incapable of being held responsible. Many of the assertions of patients are from the childhood points of view. To take their utterances during a psychotherapeutic session as responsible fact would ignore the reality of the therapeutic scene.
The mere fact that they sought treatment is evidence enough that their conscious behavior and reactions were having irrational consequences. It is this more or less unconscious awareness of the irrationality of some segment of their being that makes patients reluctant to even disclose they seek the help of a psychiatrist.
I would then suggest that consideration be given to the psychotherapeutically induced intrapsychic state of the patient at the time he makes statements to a therapist; that it be viewed in the light of regressed distortion; and that it is a mixture of fact, fantasy and distortion that should not be acceptable as "evidence of fact.” On this basis, in court, the therapist is in a position where he must protect the patient from having the proceedings of the therapeutic process taken at face value. The patient may not even know what he is actually saying or intending to do. Not infrequently in practice, patients are amazed at recorded statements and cannot explain how they came to say them. The therapist uses them as guideposts to the unconscious. To treat them as a “fact” in court would be a perversion of justice. At times patients will demand the therapist support lines of action that the patient is convinced is essential for his well-being. When the patient proceeds even after the therapist points out the irrational driving force, he might still attack the therapist for not having stopped him, if the act backfires.
The summation of the above is to support the proposition that the therapist needs the right of privilege to permit him to adequately exercise his responsibility as the protector of his patient, even from the patient himself. He must always refuse to testify on broad principle to make sure refusal in specific cases is not taken as an admis