New York's Immediate Need for a Psychotherapist-Patient Privilege Encompassing Psychiatrists, Psychologists, and Social Workers

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INTRODUCTION

Accused of strangling his girlfriend Gloria to death, Robert Wilkins testified at trial that his girlfriend had attacked him first, causing him to suffer visible slashes on his left wrist and on his abdomen. (1) Attempting to contradict Wilkins's allegations, the People sought to introduce the testimony of Dr. K.C. Sharma, a licensed psychologist, to reveal that Wilkins admitted to Dr. Sharma that such wounds were not the result of an attack by Gloria but instead were the remnants of a botched suicide attempt. (2) Significantly, the New York Court of Appeals deemed such testimony inadmissible solely because of Dr. Sharma's status as a psychologist. (3) Dismissing the Appellate Division's finding that the psychologist-patient privilege is "no broader" than the physician-patient privilege, (4) the court implied that had Wilkins spoken with a psychiatrist, rather than a psychologist, such testimony would have been admitted and the entire outcome of the case completely different. (5)

Increasing numbers of people are seeking treatment from physicians, psychologists and social workers for their mental health needs. (6) Arguably, patients expect a certain level of confidentiality when they seek out such services (7) and expect that such practitioners will not fully or even partially disclose any confidential communications. (8) Confusingly, New York has three separate evidentiary privileges for, respectively, physicians, psychologists and social workers (9) so that depending with whom the patient speaks, and what exactly is said, certain communications shared between a patient and a mental health provider may or may not be kept confidential. Limiting the patient's evidentiary privilege in such a manner is unjust, unfair and, arguably, discriminatory. New York must replace these three evidentiary privileges with a single psychotherapist-patient privilege.

This Note focuses on New York's treatment of the physician-patient privilege, the psychologist-patient privilege, and the social worker-patient privilege. While states such as Florida and California broadly define a psychotherapist to include psychologists, psychiatrists and social workers, (10) New York offers no such guidance. Instead, New York defines the practice of psychotherapy as "the treatment of mental, nervous, emotional, behavioral and addictive disorders, and ailments by the use of both verbal and behavioral methods of intervention in interpersonal relationships with the intent of assisting the persons to modify attitudes, thinking, affect, and behavior which are intellectually, socially and emotionally maladaptive." (11) Arguably, such a definition broadly applies to the services provided by psychologists, social workers, and certain physicians.

Regarding a psychotherapist-patient privilege, Justice Stevens of the U.S. Supreme Court wrote:

   [I]f the purpose of the privilege is to be served, the
   participants in the confidential conversation "must be able to
   predict with some degree of certainty whether particular
   discussions will be protected. An uncertain privilege, or one
   which purports to be certain but results in widely varying
   applications by the courts, is little better than no privilege at
   all." (12)

Anything less than complete consistency and concrete guidelines does little more than distort the intended purposes of the privileges. (13)

Part I of this Note looks at the history and purpose of each privilege, while Part II explains three distinctions found amongst the evidentiary privileges. Part III examines options and alternatives to be considered by the legislature when creating a psychotherapist-patient privilege, including the U.S. Supreme Court's holding in Jaffee v. Redmond, other jurisdictions' efforts in the field of privileged communications, and various N.Y. Proposed Codes of Evidence. Finally, Part IV proposes that New York recognize a psychotherapist-patient privilege protecting a patient's privileged communications with psychiatrists, psychologists and social workers. …

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