The Limits of Privilege: The Developing Scope of Federal Psychotherapist-Patient Privilege Law
Nelken, Melissa L., The Review of Litigation
As a practicing psychoanalyst as well as a law professor, I have more than an academic interest in the fate of the recently recognized psychotherapist-patient privilege in federal court.' While a similar privilege already exists in all fifty states, its recognition by the United States Supreme Court has both practical and symbolic value. From a practical standpoint, the decision in Jaffee v. Redmond decreases the likelihood that a particular confidential communication will be held inadmissible in state court, but admissible should suit be brought in or removed to a federal court sitting in the same state. On a symbolic level, federal courts have not been hospitable to claims of privilege in the nearly thirty years since Congress rejected proposed privilege rules recommended by the Judicial Conference Advisory Committee?
From the viewpoint of a practitioner, the Supreme Court's strong support for a therapist-patient privilege in this era of managed mental health care is striking and is in stark contrast to the assaults on privacy and confidentiality that abound in the current push toward computerization of health care information. The policy reasons articulated by the Court for adopting the privilege rest squarely on the heightened need for confidentiality in psychotherapeutic relationships. While the privilege itself applies only in federal litigation, the Court's reasoning in adopting it may prove persuasive in other contexts in which psychotherapists seek to protect the confidences of their patients from disclosure! Nonetheless, there will inevitably be limits to the protection afforded by this new privilege. While there is a public interest in protecting patient confidences, that interest is not absolute.
In this Article, I discuss the major developments in the federal law of psychotherapist-patient privilege since Ja,fee and explore some of the questions left open by the Supreme Court, particularly regarding who is a "psychotherapist" for purposes of the privilege and what exceptions to the privilege should be recognized in light of competing public policy concerns. I argue that the federal courts should apply the privilege to communications with licensed psychotherapists as well as those reasonably believed to be psychotherapists by the patient holding the privilege. While state privilege law may be looked to for guidance in determining who qualifies as a psychotherapist for purposes of the privilege, the federal courts should seek to develop a uniform approach to this issue in light of the policies behind the Jaffee decision. I also argue that in recognizing exceptions to the privilege, courts should be aware of the subjective nature of psychotherapeutic communications. The courts should also look to the analogous attorney-client privilege explicitly relied on by the Supreme Court in Jaffee and should formulate any exceptions narrowly to protect the important public and private interests served by the psychotherapist-patient privilege.
II. The Jaffee decision
In Jaffee v. Redmond the United States Supreme Court recognized a new privilege in federal courts for confidential communications between a psychotherapist and her patient.' Although a psychotherapist-patient privilege was among the privileges recommended to Congress in 1972 by the Judicial Conference Advisory Committee,' Congress ultimately created no specific privileges and instead adopted Federal Rule of Evidence 501, which provides that privileges in federal court "shall be governed by the principles of the common law, as they may be interpreted by the courts of the United States in the light of reason and experience." Since that time, every state has enacted some form of psychotherapist-patient privilege! But the federal circuits that considered the issue before Jaffee were split.'
The Supreme Court in Jaffee concluded that Rule 501 "did not freeze the law regarding the privileges of witnesses in federal trials at a particular point in history" but allowed for adaptation of the law to changing circumstances. …