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Friday, June 20, 2008

Article of Interest: Professor Philip K. Hamilton's Should Statements Made by Patients During Psychotherapy Fall Within the Medical Treatment Hearsay Exception? An Interdisciplinary Critique

New England School of Law Professor Philip K. Hamilton recently published the fascinating article, Should Statements Made By Patients During Psychotherapy Fall Within the Medical Treatment Hearsay Exception? An Interdisciplinary Critique, in The John Marshall Law Review.  The article is concerned with Federal Rule of Evidence 803(4), the medical treatment exception to the rule against hearsay, which allows for the admission of "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."  Hamilton concludes that courts should discontinue the use of this exception to admit statements made by patients in mental health treatment or in contemplation of such treatment and that the exception should never be used to admit statements made to a mental health professional consulted for diagnosis only.

After the article's introduction, Hamilton begins by arguing in Part II that application of the medical treatment exception to patients in psychotherapy is unfair compared to its application to patients seeking diagnosis or treatment of physical problems.  Ordinarily, the statements admitted under the exception against a patient seeking physical treatment are statements of medical history -- the same facts that were most important to the diagnosis and treatment of the physical condition, (e.g., nature and severity of pain, its location, time of onset, apparent causes).  Conversely, the statements admitted under the exception against patients in psychotherapy (e.g., details of assault, relationship to defendant, acts of co-workers, etc.), are generally much less central to the diagnosis of the patient's mental condition, and thus precisely those facts that are least likely to have been explored in the treatment, and certainly much less explored than the patient's statments about his feelings and other symptoms.  Hamilton notes that judges nonetheless have made matador-style rulings in psychotherapy cases, typically approving the admission of psychotherapy patients' statements by equating psychological treatment with medical treatment and showing little understanding of the differences between the two types of treatment even when they ostensibly apply a more exacting analysis.

In Part III, Hamilton argues that such decisions are problematic because the rationale behind the medical treatment exception is that patient's statements have "guarantees of trustworthiness."  This trustworthiness is primarily based upon patients' "selfish treatment interest," the perceived need to speak accurately in order to receive appropriate treatment (and relief from their presenting symptoms)."  According to Hamilton, however, patients who receive or who will receive psychological treatment do not have the same kind of selfish treatment motivation as patients seeking treatment of physical injuries and don't similraly have their statements vetted for truthfulness by the person treating them.

Hamilton first considers statements made during mental health treatment and comes to the following conclusions:

     -in the typical medical interview, the doctor takes the patient's information and challenges and clarifies it to ensure efficacious treatment whereas the typical mental health professional is most concerned with fostering a warm, personable, and confiding relationship and is less concerned with, and in fact, dissuaded from, challenging the trustworthiness of his patient's statements;

     -psychiatric patients are more likely than other medical patients to misreport through distortion, incomplete disclosure, or deliberate deception based upon, inter alia, their illnesses, fear, and/or the desire to avoid responsibility or humiliation;

     -while the efficacy of mental health treatment does depend on accurate information about symptoms, unlike with other medical patients, it does not depend substantially on the accuracy of the patient's statements about the events leading to the patient's distress;

     -(patients treated for trauma are especially likely to have memory distortion, a desire to conceal the truth based upon feelings of shame and responsibility, and impairments in thinking and decision-making); and

     -the facts that are recited by the patient in mental health treatment are ordinarily much less susceptible to verification by the clinician.

Hamilton thus concludes that the medical treatment exception should not apply to statements made during mental health treatment.  He then identifies an even more pernicious application of the exception:  its application to patients, most frequently trauma patients, being treated by a non-mental health medical professional who was also evaluating the patient for referral to mental health treatment for the trauma.  Hamilton identifies a line of cases where courts admitted statements made by patients in this context and identifies at least two problems with their decisions:

     -first, the situations in which such statements arise raise serious concerns about the accuracy of the victim's perception and memory and his need to conceal the truth; and

     -second, there is no evidence in these cases that the victims themselves were aware that their statements were related to their mental health treatment or even that such treatment was contemplated, meaning that there could have been no "selfish treatment interest" ensuring accuracy.

Finally, in Part IV, Hamilton argues that, whether in the medical or mental health treatment context, the medical treatment exception should not apply to statements made for the sole purpose of diagnosis, with no eye toward treatment.  Hamilton notes that such statements were deemed inadmissible before the passage of the Federal Rules of Evidence and that, while those Federal Rules overruled that line of authority, its rationale for doing so was undermined by the 2000 amendment to Federal Rule of Evidence 703.  He then notes that the cases dealing with statements made to mental health professionals have been strikingly inconsistent, perhaps reflecting discomfort with the anomalous state of the rule.  Hamilton argues that all courts should side with the courts that have rejected the admission of statements made for the sole purpose of diagnosis, and thus concludes based upon the entirety of his article that Federal Rule of Evidence 803(4) should be amended to read:

     -"The following are not excluded by the hearsay rule, even though the declarant is available as a witness.

. . .

Statements for the purposes of medical diagnosis or treatment. Statements made for the purposes of medical diagnosis or treatment of a physical illness or injury and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." 

I found the article to be very convincing, agree to the amendment suggested by Hamilton, and highly recommend the article to anyone with an interest in this area of the law.  I wrote Professor Hamilton and asked him about what led him to write the article and about plans for future scholarship, and he responded:

     "I was motivated to write it after a conversation with a defense attorney several years ago.  He was representing a man in a case involving a sexual offense.  The complaining witness was a woman with a history of mental illness and she had committed suicide.   The lawyer told me that he had suggested to the prosecutor that the case would have to be dismissed because of a lack of evidence, now that the complainant couldn't testify.  The prosecutor replied that he would prove the case through the decedent's psychiatrist, who would testify to what the decedent had told the psychiatrist about what the defendant had done to her.  The prosecutor said that the testimony would be permitted under the medical treatment hearsay exception.  As a longtime Evidence teacher who knew something about psychotherapy, I didn't think that was right, but when I did some research I found that some courts actually used that exception to allow exactly that kind of hearsay into evidence. So I wrote the article.

     I am beginning research on whether there should still be an exceptionfor an excited utterance, given what we now know about the brain."

-CM
   

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