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Univ. of South Carolina School of Law

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Tuesday, December 8, 2009

The Shrink(ing) Privilege, Take 2: New York Times Article Reports That Exceptions To Military Psychotherapist-Patient Privilege Are Hindering Therapy

Although it was ultimately rejected, Proposed Federal Rule of Evidence 504 set forth a psychotherapist- patient privilege, under which

A patient has a privilege refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.

Even though the proposed Rule was rejected, the Supreme Court later recognized the existence of a federal psychotherapist-patient privilege in its 1996 opinion in Jaffee v. Redmond, 518 U.S. 1 (1996). Because the Court left the scope of the privilege and its exceptions for later determination, courts vary in the number of exceptions that they carve out of the psychotherapist-patient privilege, with some widely adopted ones being the "crime-fraud" and "dangerous-patient" exceptions. See, e.g., Deirdre M.Smith,An Uncertain Privilege:  Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in Federal Courts, 58 DePaul L. Rev. 79, 96 (2009). As a recent article in the New York Times notes, Military Rule of Evidence 513, the military psychotherapist-patient privilege, contains more exceptions than the federal psychotherapist-patient privilege, and, according to some, it is hindering therapy.

According to the article, 

Many soldiers, lawyers and mental health workers say that the rules governing confidentiality of psychotherapist-patient relations in the military are porous. The rules breed suspicion among troops toward therapists, those people say, reducing the effectiveness of treatment and complicating the Pentagon’s efforts to encourage personnel to seek care.

The problem with the military rules, experts say, is that they do not safeguard the confidentiality of mental health communications and records as strongly as federal rules of evidence for civilians. Both systems say therapists should report patients when they seem a threat to themselves or to others. But the military rules include additional exceptions that could be applied to a wide range of suspected infractions, experts say.

"There really is no confidentiality," said Kaye Baron, a psychologist in Colorado Springs who has been treating soldiers from Fort Carson and their families for eight years. "You can find an exception to confidentiality in pretty much anything one would discuss."

Meanwhile, 

Some legal and mental health experts say the military’s rules on psychotherapist-patient privilege are not clear-cut. Michelle Lindo McCluer, a former Air Force lawyer who is the executive director of the National Institute of Military Justice, said that some exceptions to the privilege are so broadly worded that "you could drive a truck through them." 

Of course, others contend that these additional exceptions in Military Rule of Evidence 513 "recognize[] that the military justice system serves broader goals than simply punishing a specific offender." As University of Florida Levin College of Law Professor and former Air Force Captain Diane H. Mazur noted in her article, Military Values in Law, 14 Duke J. Gender L. & Pol'y 977, 1006-07 (2007),

The military's psychotherapist-patient privilege, interestingly, does contain an exception that is peculiarly military and would be unavailable in a civilian context. Under Military Rule of Evidence 513, there is no privilege "when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission." This exception recognizes that the military justice system serves broader goals than simply punishing a specific offender. Military commanders are responsible for the safety of an entire community in a way that civilian prosecutors are not, and military commanders are responsible for the accomplishment of an assigned mission in a way that has no counterpart whatsoever in the civilian world.

Below are all of the exceptions to Military Rule of Evidence 513, and I will leave it readers to decide what they think about their propriety:

(d) Exceptions. There is no privilege under this rule:  

(1)  when the patient is dead;  

 
(2)  when the communication is evidence of spouse abuse, child abuse, or neglect or in a proceeding in which one spouse is charged with a crime against the person of the other spouse or a child of either spouse;  
 
(3)  when federal law, state law, or service regulation imposes a duty to report information contained in a communication;  
 
(4)  when a psychotherapist or assistant to a psychotherapist believes that a patient’s mental or emotional condition makes the patient a danger to any person, including the patient;  
 
(5)  if the communication clearly contemplated the future commission of a fraud or crime or if the services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud;  

(6)  when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission;  
 
(7)  when an accused offers statements or other evidence concerning his mental condition in defense, extenuation, or mitigation, under circumstances not covered by R.M.C. 706 or Mil. Comm. R. Evid. 302. In such situations, the military judge may, upon motion, order disclosure of any statement made by the accused to a psychotherapist as may be necessary in the interests of justice; or  
 
(8)  when admission or disclosure of a communication is reqadverse effect on the integrity or fairness of the proceeding.  

Update, 12/9/09: I e-mailed Professor Mazur about this post, and she responded as follows:

The NY Times article, unfortunately, completely confuses the difference between an evidentiary privilege and an ethical obligation of confidentiality on the part of therapists.  The issue that has the greatest potential to interfere with treatment (and what the article intended to focus on, I think), is the ethical obligation of confidentiality.  When do military therapists have the option (in almost all instances it would not be an obligation) to report past crimes or offenses?

The article fuses the two doctrines in this transition: "The problem with the military rules, experts say, is that they do not safeguard the confidentiality of mental health communications and records as strongly as federal rules of evidence for civilians."  The point you make in your post is, of course, still valid.  With respect to the evidentiary privilege, members of the military may not be able to assert the privilege to withhold information relevant to a prosecution (or defense) of war crimes or sexual assault, for two examples.  I argue, as you note, that there are some good reasons for the different scope of the privilege.

Interestingly, the rules on the ethical obligation of confidentiality in a military context are much less specific and more the subject of disagreement.  Some therapists believe, for example, that they have the discretion (some would even say the obligation!) to report patients who disclose they are gay.  Most therapists would disagree, but it puts servicemembers in an awkward position, with no guarantees.  (Most reports on this issue from military therapists, I believe, are religiously motivated.)

-CM   

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Why does the NYT hate America?

Posted by: The Dude | Dec 10, 2009 7:07:18 PM

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