Courts, Including Those in Virginia, Continue to Wrestle with the Availability and Application of the Psychotherapist-Client Privilege
In 1952, a state trial court in Illinois issued what appears to have been the first judicial ruling recognizing a testimonial psychotherapist-client privilege. It established that disclosures made in the course of psychotherapy may generally not be introduced in court proceedings regardless of their value in resolving the case before the court.
In this case, the plaintiff in a divorce proceeding had sought as part of discovery to obtain the testimony of a psychiatrist and a patient's hospital records. The psychiatrist and the hospital refused, claiming that the related communications were privileged. Such a privilege at that time in Illinois applied to communications between a lawyer and a client and a husband and a wife, but not to physicians and patients or priests and penitants. [These latter two privileges are more widely available today.]
The court stated that the special nature of the psychiatrist-patient relationship dictated that communications made in the course of this relationship should be recognized as privileged. The court asserted that there is a "vital difference" in the communications between physicians in general and their patients and between psychiatrists and their patients. While the former seeks information regarding a patient's symptoms, the psychiatrist is trying to ascertain "the cause of mental or emotional disturbances of a maladjusted patient." This inquiry "necessarily covers every experience of the patient," including an exploration of childhood and adolescent experiences where an effort is made to revive forgotten memories that "lie dormant in the subconscious mind." A particular key of this interaction, the court claimed, is to get the patient to speak this information. The court asserted that treatment could not be successful unless the patient has complete confidence "in the secrecy of the things transpiring in the doctor's chambers."
The court also noted that psychiatry "is a relatively new science," although it had gained "world recognition" as early as World War I where both camps resorted to it on a "virtually universal" basis, a use that became more formalized during World War II. The court also cited the reliance on the field within the legal system. Further, the court emphasized the "great" potential of the profession. However, to fulfill this potential, the court concluded, the profession must be able to probe into "the inner recesses of the mind," which it cannot do successfully "without obtaining the confidence" of the patient and "getting information" from the patient. To compel psychiatrists to disclose those matters that came to them as the result of a confidential relationship, the court contended, "may rob [society] of a healing process affecting thousands and perhaps millions of our inhabitants." Thus, the court ruled that all confidential communications between the patient and the psychiatrist, including hospital records that contained those communications, were privileged and generally not available to a judicial proceeding. Binder v. Ruvell, No. 52C2535 (Circ. Ct., Cook County, Ill., June 24, 1952), reprinted in 150 JAMA 1241 (Nov. 22, 1952), http://jaffee-redmond.org/cases/binder. htm.
Since 1952, states have widely recognized the need to maintain the confidentiality of mental health records and communications between psychotherapists and clients. In 1996, the United States Supreme Court in Jaffee v. Redmond recognized a psychotherapist-client testimonial privilege to be applied in the federal courts.
In Jaffee, the plaintiff in a civil suit tried to gain access to the records of the social worker who was treating the defendant. The Supreme Court determined that the Federal Rules of Evidence gave courts the power to recognize new testimonial privileges when a "public good" transcends "the normally predominant principle of utilizing all rational means for ascertaining the truth" in judicial proceedings. The Court ascertained that "[e]ffective psychotherapy . …