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in some obvious severe cases, requests are refused). The next obvious fact is that these written records are not secure. There is no evidence that these records are ever destroyed. Once California starts computerizing these records with a state wide interlocking system, access to such records can be done more easily, without leaving a trace.

In a report of the World Medical Association Congress meeting in Munich, Germany, October 1974, it was reported that such countries as Denmark and Belgium are already using all such information by all government agencies. The New York Times carried similar information from Sweden. The American Psychiatric Association, anticipating this problem, formulated a Position Paper in 1970, warning, and suggesting protective steps be written into any National Health Insurance legislation.

29. There has been a report that one state, computerizing its psychiatric records, used convicted inmates of its penitentiaries to transfer the crude, raw data to punch cards; making identifiable material available to those doing the work. The last report is that the project was finished.

June 15, 1974.

Special Note

Readers may also be interested in Psychiatry and Confidentiality, An Annotated Bibliography, prepared by the Library Staff of the American Psychiatric Museum Association, 1700 18th Street N.W., Washington, D.C., 20009, September, 1974. Mimeo, 51 pages, $2.50.

Dr. GROSSMAN. There is one aspect in that testimony that I would like to emphasize. The kind of statements a patient makes, the compounded fantasies and distorted memories and guilt reactions they will often confess to things that never took place. They would even make accusations against people that never took place, based upon their own neurotic distortions, which are necessary for their own protection.

In searching for evidence and truth, to use statements that come out in psychotherapy statements, is really reaching for the moon, because most of it has no truth to it at all. And our problem is in therapy eventually getting to see and learn the internal inconsistencies of what the patient says, eventually get the patient to recognize that they are distorting in their memory and observation, in order to protect themselves.

And to have this information get into the hands of prosecuting officials or law enforcement officials is really devastating. Even in court procedures, the courts need to ascertain the truth, particularly psychiatric testimony as truth is the farthest thing from reality. It is anything but that.

I do believe that H.R. 214 does have a sincere and laudable purpose of trying to do something about this menace of crime and how can law enforcement agencies get the information to combat crimes of all kinds; whether it is financial crimes, as indicated in some measure by earlier speakers, or crimes against persons or property, is beside the point. I think there is a growing menace of crime, and the question is, how can we reinforce law enforcement to deal with it?

I think what it is doing, it is legalizing procedures that were, and may still be used, but from my point of view-and I would like to explain why-I think that this will fail in its purpose, particularly in terms of medical records.

Mr. KASTEN MEIER. Dr. Grossman, you have stated a compelling case for why the records of psychiatric patients should not be given public disclosure, but do you not think there is a distinction to be made between a patient whose fantasies are reported and a different type of medical record such as the medical record a hospital would have as to admission dates of an individual with gunshot wounds? Do you not think some distinctions might be made between these two situations, between the psychiatric patient and the individual who is admitted to the hospital with gunshot wounds?

Dr. GROSSMAN. Well, I would like to answer the two questions. The first answer is, "Yes." The second thing is the gunshot wounds now have to be reported, by physicians and hospitals legally, and there is no exception sought to that. But when they then demand, on the basis, we want your whole record, then there is no distinction between the fact that there was a gunshot wound, the day of the gunshot wound, and other things that may be brought in there, that have to do with the emotional factors and destructive factors that are not particularly relevant to the gunshot wound.

When there are things that ought to be, factual material, we already have laws that indicate that they have to be reported, even before someone asks about them. And if there are such things, then you have another situation, and this is what occurs to me, in reference to H.R.

214, you do not need a law to say you can get that information by subpena; you can do it now. You already have laws where, if you have such information, that a person was admitted for a gunshot wound that was not reported, I think you already have the laws where you can get a subpena to get that record. It does not need a new law.

Mr. KASTENMEIER. Let me use a simpler case, but not the same, not a gunshot wound, some other wound, a knife wound. Does it also cover them?

Dr. GROSSMAN. I think so. Whenever you have an injury of that particular type, there is a legal obligation to report it. If they do not, then the doctor or the hospital has broken the law.

Mr. KASTENMEIER. What you are saying, and I do not want to quibble, is that there are already adequate laws for having access to that sort of medical information, in which society has a compelling interest-sufficient for law enforcement purposes.

Dr. GROSSMAN. That is my understanding. The reason I said I wanted to qualify my yes answer is that my experience has been that they do not merely go in and indicate what information do you have relevant to the situation. They say, I want to see your whole record. They will come in and demand a photocopy of everything in the record. If they have had multiple admissions, for example, they will go and say, we want a photocopy of all your records, including psychiatric records.

Mr. KASTENMEIER. Could we have a standard which would say information other than psychiatric information may be disclosed?

Dr. GROSSMAN. This would apply to psychiatry, but I am speaking for other physicians. The girl who comes in who is pregnant-nowadays, she can see a physician and get an abortion legally. In the old days but it is legal now to get an abortion-if they were to disclose that information, she might not have an emotional problem now, but the disclosure of that may create an emotional crisis. So there are some instances of medical information which are, in and of themselves, not psychiatric but emotional, which, if disclosed could create an emotional problem. This is where it gets sticky.

I really do not know what the answer is. I understand what you are trying to say, and recognize that there is a need to get certain information. My concern is that they use these search warrants and subpenas to get a broad category of all information.

I made reference to the fact that the California Supreme Court had a case that had to do with an exception of the psychotherapist's privilege. If the patient is a plaintiff, and if psychiatric records is a part of their complaint, there is no privilege, but the supreme court ruled, in going after the record, they have to limit themselves to the details that are just relevant. The trouble is that the courts find, we do not know what is relevant, unless we make the whole record available, so we are right back where we were.

The point you are raising is a valid one, and the problem is how it applies in actual practice. That is the thing. I really do not know what the exact answer is.

Mr. KASTENMEIER. Let me ask you this, Dr. Grossman. Quite apart from your objections, as I understand them, to H.R. 214, is the present state of Federal and State law with respect to medical records

57-282 O 76 pt. 1 41

acceptable to you and to the AMA, or to any other group interested in medicine?

of people

Dr. GROSSMAN. I will give you a twofold answer. The first answer is, no. The second answer is, I think you will find it very hard to write a law-we want more than I think we are probably entitled to. The present state is not, but I will try to explain why.

As you recall, when 5463 of last session, that had to do with the Federal Code of Ethics, was passed, all privilege sections were knocked out, and it was substituted 501 that indicated State laws and privilege would apply in the various jurisdictions. The problem is that physician-patient privilege, which began in New York about 1820, or thereabouts, has so many exceptions to it that for practical purposes, it is no protection at all. As a result of that, physicians really have no protection now in the States, and certainly, it was knocked out of the Federal Code.

As I said, seven States have written psychotherapist-patient-privilege law. New York is waiting for the Governor to sign it. They put the exceptions in there. One is patient litigant exceptions. If the patient is the litigant, and his condition is either a part of his claim or a defense, there is no privilege. It is an absolute exception.

In the testimony that I refer to in that little pamphlet, the task force report, I suggested a modification of that, that the judge would have to consider the case on an individual basis before he applied the exception, in order to at least put part of a lock on that barn-door exception that opened up the whole thing.

And also, the Federal proposed code included all physicians. The State codes that I refer to include psychologists and include psychiatrists. But general physicians see the same kind of patients, see the same kind of problems, and have no protection now in any jurisdiction, State or Federal. I would like to see a privilege law that is modified or modeled after psychotherapist-patient privilege, but made to apply to all physicians in similar circumstances.

Mr. KASTEN MEIER. I think in conclusion, I would observe, that on the basis of the testimony that we have heard today, including that of Dr. Grossman, H.R. 214 treats the subject too superficially to be relied upon in its present form.

I think that the testimony today was very enlightening and helpful in suggesting the shortcomings of the bill before us in the area of medical, financial, and banking records.

Dr. Grossman, on behalf of the committee, let me express our gratitude and appreciation to you, not only for the work you have done in this field in the past, but particularly for appearing today. If we need to rely upon you in the future, perhaps we might again consult with you.

Dr. GROSSMAN. I appreciate being here. I appreciate your kindness to hear me out, and I hope that I can be available, should you want to make further inquiry.

I do thank you.

Mr. KASTENMEIER. This concludes today's hearing on H.R. 214. We will recess subject to a future call of the Chair.

[Whereupon, at 1:20 p.m., the committee recessed, subject to the call of the Chair.]

The PRESIDENT,

CONGRESS OF THE UNITED STATES,

COMMITTEE ON THE JUDICIARY,
Washington, D.C., March 21, 1975.

The White House,
Washington, D.C.

DEAR MR. PRESIDENT: As Chairman of the Subcommittee on Courts, Civil Lib erties, and the Administration of Justice of the House Committee on the Judiciary, I have legislative responsibility and concern regarding surveillance techniques. Pursuant to these responsibilities, the Subcommittee heard testimony from Mr. William J. Cotter, Chief Postal Inspector of the Untied States Postal Service, on Tuesday, March 18, 1975. Mr. Cotter verified reports that the Central Intelligence Agency maintained a program of intercepting, opening, and reproducing the mail of American citizens.

Mr. Cotter, however, was unable to assure the Members of the Subcommittee that no such program is currently in existence. Mr. President, as you know, the privacy of the public's mail is a matter of serious concern, and I ask that you promptly review the situation and give the public assurances that there is no current program of opening the mail of United States citizens except as provided by law.

Sincerely yours,

ROBERT W. KASTENMEIER, Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of Justice.

THE WHITE HOUSE, Washington, D.C., April 21, 1975.

Hon. ROBERT W. KASTEN MEIER,

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of Justice, House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: This is in further response to your letter to the President of March 21 concerning intercepting, opening and reproducing the mail of American citizens. Let me say at the outset that we share your concern for the privacy and other important Constitutional rights of U.S. citizens.

With respect to your specific inquiry, I should like to draw to your attention the testimony of CIA Director William E. Colby last January before the Senate Appropriations Committee. Mr. Colby stated that:

"From 1953 until February 1973, CIA conducted several programs to survey and open selected mail between the United States and two Communist countries. One occurred in a US city from 1953 to February 1973, when it was terminated. One took place during limited periods in one other area in November 1969, February and May 1970 and October 1971. One other occurred in August 1957. The purpose of the first and extended activity was to identify individuals in active correspondence with Communist countries for presumed counterintelligence purposes, the results being shared with the FBI. The others were designed primarily to determine the nature and extent of censorship techniques. The August 1957 case was to try to learn the foreign contacts of a number of Americans of counterintelligence interest. I repeat that there has been no mail survey in this country by CIA since February 1973."

I believe that Mr. Colby's statement is adequate assurance that the Central Intelligence Agency has no current program of opening the mail of United States citizens.

Very truly yours,

PHILIP W. BUCHEN, Counsel to the President.

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