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. 8. Compare: 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 Grossman, Maurice "Proposed Federal Code of Evidence Rule 504Psychotherapist-Patient Privilege" Feb. 23, 1973, unpublished copy attached. 16.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 the Privilege in Order to Protect the Patient Maurice Grossman, M.D. 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 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 |