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 harassment 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 New York State Supreme Court ruled that the photographs of all patients in the treatment program be made available to witnesses and legal authorities in a hunt for a suspected murderer. At last word, this was being requested for review by the New York State Supreme Court, with consideration of appealing to the United States Supreme Court if necessary. Additional attention is needed to the problem of protecting patients in psychotherapy, not from the intent of the law, but from how it works out in actual practice. Maurice Grossman, M.D. February 23, 1973 Appendix H: Samples of Reports From Psychiatrists of Injuries to Patients Resulting From Breaches of Confidentiality Compiled by Maurice Grossman, M.D. Chairman of the Task Force In the following illustrations, distortions have been purposefully made to disguise identification and in some instances the essential facts are gleaned from multiple cases. 1. A 24 year old schizophrenic patient, receiving EST in hospital improved and was able to return to work. Patient not told actual diagnosis because of still fragile state. Insurance covered patients routinely are given forms to sign on hospital admission. Includes permission to give information to insurance company. Hospital sent a report of the hospitalization as routine matter to get payment for bill, including diagnosis and suicide attempt. On return to work, patient found that fellow employees knew of the hospitalization, the incidents. Insurance company sends report to employer on group contract coverage. Patient becomes paranoid toward her physician; expresses self about first learning about herself from fellow employees; terminates treatment. 2. Similar case, with patient learning of diagnosis with notice from insurance company reporting they had paid the bill. Patient paranoid about how insurance company, and “their clerks" knew all about it. 3. A very emotionally upset patient, first making inquiries from insurance company that no information would reach employer, was so assured. The entire therapy damaged, and patient worse when finds employer discloses knowledge of the treatment and other factors. Medical Director of the national company involved, and a high official in insurance organizations writes "we are obligated to tell the employer because he pays the premiums." (Note that such group contracts are fringe benefits paid for by employees labor, and are only administratively paid for by employer.) 4. Patient called in for questioning about insurance report of psychiatric illness relative to security clearance even though no interference with work. Incident to security investigation, neighbors were asked what they might know about any psychiatric problem about this patient. 5. Reports of employers looking for excuses to separate employees based either on prejudice about psychiatric illness or unwarranted concern they will add burden and increased 57-28276 pt. 1 40 |