sion of some secret forbidding trait in a specific patient. The question of informed consent as applied to waivers of privilege by patients in therapy is an entirely different aspect. The above discussion would be relevant to that. The reliance on the patient's waiver might well be questioned in this approach. Some clinical examples are: 1. Patient reacts to current situation that evokes unconscious memory of childhood trauma and anger. Statements in therapy taken out of context of the therapeutic scene, would be a gross distortion of actual behavior on job. Yet he feels tremendous guilt about job performance based on his childhood guilt. His statements, in court, could be used by adversary as though they were facts, confusing a jury. 2. Those patients, because of neurotic needs, repeatedly feel they are committing grave crimes. The extreme are innocent individuals who come to confess they might be the culprit in publicized crimes. Lesser versions of these are apparent in other self-blame statements during therapy, especially when pushed into taking aggressive action like filing a lawsuit. And these are not psychotic individuals. 3. Freud's famous experience of adult patients reporting they had been raped at time of puberty; and his eventual realization they were reporting fantasies as though they had been real. 4. Those patients signing for release of information by therapist under social pressure (boss on job, husband of wife-patient); or the passive submissive patient who literally cannot refuse; and both groups depending on the therapist stepping in to say "No." 5. The insurance company refusing to pay for covered treatment, asking more and more details of the case. To file suit, the patient jeopardizes his privacy. In two instances, both non-psychiatric, the claimant dropped the issue without recovering his payments, out of fear of upsetting his employer who had the insurance contract. 6. Slawson's case is still relevant, even though divorce proceedings have changed. A patient's inability to collect insurance because to report desired information, would be through husband, the insured one, and might be used by him in child custody proceedings. In the one I know, the fear of it being used was based on unconscious dread, rather than any real danger; but the effect was equally as destructive at that stage of treatment. 7. The hypothetical school teacher suing for his job. The school administrators use knowledge of the teacher using group insurance for psychotherapy, demand the record to support their contention of unfitness, rather than testimony of actual job performance deficiencies. I would guess that the average judge would admit the whole record. There have been reported instances of misuse of psychological tests in basing action on such words as "latent homosexuality," "high on femininity scale" for men, "aggressive tendencies," etc. In court, any expert evidence that the terms have no relevance separated from any overt behavior, would not reduce the impact of such terms on a jury. ADDENDUM TO TESTIMONY Pub. Law 92-255, March 21, 1972 #408. Confidentiality of patient records. (a) Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any drug abuse prevention function authorized or assisted under any provision of this Act or any Act amended by this Act shall be confidential and may be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section. (b) (1) If the patient, with respect to whom any given record referred to in subsection (a) of this section is maintained, gives his written consent, the content of such record may be disclosed. (A) to medical personnel for the purpose of obtaining benefits to which the patient is entitled. (2) If the patient, with respect to whom any given record referred to in subsection (a) of this section is maintained, does not give his written consent, the content of such record may be disclosed as follows: (A) To medical personnel to the extent necessary to meet a bona fide medical emergency. (B) To qualified personnel for the purpose of conducting scientific research, management or financial audits, or program evaluation, but such personnel may not identify, directly or indirectly, any individual patient in any report of such research, audit, or evaluation, or otherwise disclose patient identities in any manner. (C) If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. (emphasis added) Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure. (c) Except as authorized by a court order granted under the subsection (b) (2) (C) of this section, no record referred to in subsection (a) may be used to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient. (d) The prohibitions of this section continue to apply to records concerning any individual who has been a patient, irrespective of whether or when he ceases to be a patient. (e) Except as authorized under subsection (b) of this section, any person who discloses the contents of any record referred to in subsection (a) shall be fined not more than $500 in the case of a first offense, and not more than $5,000 in the case of each subsequent offense. ADDENDUM TO TESTIMONY PROPOSED FEDERAL CODE OF EVIDENCE RULE 504 - PSYCHOTHERAPIST-PATIENT PRIVILEGE This rule for privilege in psychotherapy recognizes Constitutional ground for such protection.* Not to grant such privilege would interfere with the rights of an individual to seek health and protect life because it is recognized that patients requiring psychiatric care would be reluctant to seek such care unless they were assured that disclosure of embarrassing or damaging material would not get beyond the physician they are consulting. Furthermore, for psychotherapy to be effective, it requires that patients hold back no material and disclose everything and anything that is involved in their emotional processes. Here again, this would not be possible unless the patients really were assured that there would be no release of such information beyond the therapist. This was recognized in the deliberations of the California Supreme Court in the Lifschutz case. Based on these same principles, a similar law was first passed in Connecticut and was considered by all concerned, both in the legal and psychiatric professions, that it offered adequate protection to patients and the law. A similar law was adopted in California and is now part of the California Code.** A similar law was passed in Illi *California Supreme Court decision in Lifschutz. 2 Cal. 3d, 431-32, 437, 467, P. 2d at 567-68, 571-72, 85 Cal. Rptr at 839-40, 844. **1970 Revision Article 7, Sections 1010-1028. nois, and in 1971, amendments were necessary based on problems created by the law, based on the exceptions to the privilege that were incorporated as part of the basic law. These same problems have developed in the application of the Code in California. The source of the problems are the exceptions, based on the patient's mental or emotional condition being entered by the patient as an element of a claim or defense (California Section 1016; Federal Code Rule 504 (d)(3)). The legal philosophy for this exception is that if patients use their psychiatric condition for a claim or defense, the truth concerning this requires access to all the material bearing on this; and that patients need not make the claim and can so preserve their confidential disclosures. In practice, it turns out that, because of this, patients are given the choice of pursuing just claims under conditions of costly emotional damage; or to forgo just claims, — conditions not suffered by claimants not in treatment. Furthermore, this concept treats the disclosure of patients during treatment as facts that are of reliable truth. The actual nature of the revelations of patients in therapy are far from fitting these critera. The patients' emotional involvement in the material of disclosure results in distortions and often outright untruth, unconsciously produced, that are part of their neurotic or psychotic process. This is compounded by the nature of the therapeutic process that encourages patients to regress to childhood states during therapy in order to reach hidden childhood factors involved in their psychiatric problems. This forces the patient to drop all adult reality controls that keep healthy adults' thoughts and utterances in truthful perspective. The California Supreme Court in the Lifschutz case recognized some of these factors, with particular reference to the extreme damage that could be done to such patients if their therapists were to disclose material given in such confidence. They tried to bridge the two factors involved, - that is, the patient's need for protection and treatment and the court's need for information, by determining that disclosure should be restricted and limited to that information relevant to the proceedings. This decision seemed to resolve the problem, except that in practice in courtroom proceedings almost immediately following this decision of the California Supreme Court defendants (their insurance company attorneys) have insisted on free right to full disclosure, even in depositions, forcing psychiatrists to protect their patients at considerable hardship to themselves (Lifschutz going to jail, he and at least two others being forced to go through appeals that were more costly in time involvement than the $10,000 to $25,000 legal expenses each incurred in protecting their patients). In the case of Dr. Robertson, when the California Supreme Court accepted the appeal to review an adverse decision of the lower appellate court, the defendant settled for the original claim amount rather than risk a Supreme Court decision, suggesting the exclusionary section is used for harrassment of the patient and psychiatrist. In actual proceedings, patients claiming their psychiatric condition in issue, still have to prove relevance and truth of such claim. Expert testimony other than their psychiatrist can be subject to crossexamination; or the patient can resort to the doctrine of res ipso loquitor. Therefore, sources other than the therapist are available for ascertaining the truth of the issue. In Dr. Robertson's case, a nontreating psychiatrist had examined the patient, was being used for the plaintiff, and was available for cross-examination. In another case involving a Dr. Caesar, an eminent psychiatrist called by the plaintiff patient, testified that the patient's mental state was not due to the accident in question, but the defendant's attorneys still pressed disclosure from the therapist, Dr. Caesar, again suggesting harass ment as a threat to psychiatric patients who sue. Another problem has to do with legal view and legal procedures handling such information. If such information can be elicited in deposition where there is not the protection of the court itself, even though this information may be stricken from the record based on both the law and judicial protection, the damage to the patient has already been done. We have record of cases where such depositions were read in court with damage to the patient, and even though the information was then stricken from the record for legal purposes, the psychiatric damage had already been incurred. The question of legal admissibility and reversal is an entirely different problem from protecting the patient from breaches of confidentiality of the material given in private to their treating psychiatrist. In North Carolina and in the section protecting confidentiality in the federal law setting up the Office of Drug Abuse Control and proposed legislation for Veterans Administration drug abuse treatment programs, protection was dependent upon requiring the judge in court to make a determination whether there were overriding needs for information that warranted intrusion and destruction of the patient's need for confidentiality. In the drug abuse program, the need was not really for the protection of the patient, but the recognition that the whole program and its success was dependent on patients feeling secure that their seeking treatment and records of treatment would not result in legal and other civil problems. As noted from the attachment, it can be seen that even this failed in New York City, where the trial court judge and the Appellate Division of the |