Article of Interest: Professor Deirdre Smith's An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in Federal Courts

Last December, I wrote about a very interesting article by University of Maine School of Law Professor Deirdre Smith about the role of medical evidence in the ADA definition of disability.  Now, Professor Smith has written another terrific piece about a topic that has always interested me:  When does a patient waive the psychotherapist-patient privilege?  The article, An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in Federal Courts, which will appear in a forthcoming issue of the DePaul Law Review, offers an analysis of the questions implicated by waiver of the privilege and proposes an approach to the issue of waiver which ensures that the concept of waiver does not vitiate the right entirely.

In Part II, Smith traces the rise of civil defendants seeking (and procuring) records, testimony, and other information regarding plaintiffs' current and past mental health treatment.  Civil defendants always sought such information to defend issues of liability, but with the 1990 Americans with Disabilities Act and the Civil Rights Act of 1991 allowing plaintiffs to seek damages for emotional distress, defendants' arguments for access were buttressed.  Consequently, it has been relatively easy for defendants to fashion and find support for superficially valid arguments in support of a need to obtain a wide range of mental health evidence.

In Part III, Smith then traces the origins of the psychotherapist-patient privilege, considering its forerunner, the physician-patient privilege, how discussion began regarding the need for a separate psychotherapist privilege in the mid-20th century, and how such a privilege was thereafter adopted in some form by all states as of 1996.  She then considers the "markedly different" development of the privilege at the federal level, leading up to the 7th Circuit's opinion in Jaffee v. Redmond, which recognized a psychotherapist-patient privilege, but one which was subject to a "balancing" approach, under which the privilege would not apply where "in the interests of justice, the evidentiary need for the disclosure of a patient's counseling sessions outweighs the patient's privacy interests."  The 7th Circuit wouldn't have the last word, however, as Jaffee proceeded to the Supreme Court, which formally recognized a psychotherapist-patient privilege based primarily on the instrumental rationale of promoting confidence and trust in the psychotherapist-patient relationship.  The Supreme Court also replaced the 7th Circuit's "balancing" approach with an "absolute" version or the privilege, but it regrettably made no substantive mention of what circumstances would give rise to waiver of the privilege.

In Part IV, Smith reviews and critiques the post-Jaffee federal case law regarding implied waiver of the privilege. According to Smith, there are several approaches (mis)applied by federal courts in the wake of Jaffee:

     -there is a split among courts, with some applying a "narrow" approach, under which the privilege is only waived by a plaintiff calling her therapist as a witness (which is consistent with the essential principles of waiver generally), but most courts applying a "broad" approach, under which a plaintiff waives the privilege merely by asserting a nonspecific claim for emotional distress;

     -some courts find that there is no waiver when a plaintiff seeks damages for "garden-variety" emotional distress (a not particularly useful construct) but that there is waiver when a plaintiff seeks damages for, inter alia, a specific diagnosable medical condition;

     -many courts apply privacy, fairness, and relevance rationales to waiver questions, which implicitly rejects the "absolute" version of the privilege laid out in Jaffee and ignores the purposes of privileges in general;

     -there is split among courts as to what has been waived when the privilege is waived, with courts generally permitting broad discovery by defendants while offering little scrutiny of the relevance of such records;

     -many courts presented with discovery requests for psychotherapy records paired with a demand for a psychological/psychiatric evaluation under FRCP 35 confuse the analysis of waiver of the psychotherapist-patient privilege and the FRCP 35 analysis; and

     -many courts presented with ADA cases have been quick to conclude that asserting a claim under the ADA effectuates a waiver of the privilege with respect to a claims for emotional distress damages and/or based upon the mere fact that the plaintiff claims to have a psychological disability.

In Part V, Smith concludes that these various and sundry approaches has created an unworkable and illusory privilege.  She contends that to fix this problem, "courts must shift their focus from an instrumental rationale based upon the questionable assumption that the psychotherapist-patient privilege ensures that individuals seek psychotherapy in the first place, to a more realistic and pertinent instrumental rationale, namely that of ensuring that those who have or had a mental illness or treatment are not broadly discouraged from using the courts to remedy a deprivation of their rights."  Specifically, under her approach:

    -the first step in the analysis would be that when defendants request mental health records, courts would make an initial determination under FRCP 26 whether such records are in fact within the scope of permissible discovery;

     -if the first step is satisfied, the second step would be to determine whether the records are covered by the privilege, a determination to be made without reference to fairness and necessity;

     -if the records are covered, the third step would be to consider whether the plaintiff waived the privilege, with the burden of proof being on the defendant and the court focusing solely on the actions of the privilege holder, and with, inter alia, a mere claim for emotional distress damages not constituting waiver; and

     -if there is waiver, the fourth step would be to take additional measures to protect litigants and to follow the broader aims of discovery and litigation.

I asked Professor Smith what led her to write the article, and she responded,

"There are several reasons I decided to tackle the issue of implied waiver of the psychotherapist-patient privilege, some stemming from issues that arose in my practice years ago and some from the more recent research I've done in the ADA context.  Although I recognize that privileges are generally disfavored in the law since they necessarily run counter to truth-seeking etc. by shielding certain information from discovery and fact-finders, I was concerned that the case law on this important question was so chaotic.  The question of whether a party has impliedly waived the psychotherapist-patient privilege can arise in any federal court case in which a person is either seeking emotional distress damages or alleging discrimination on the basis of a mental disability.  The courts, however,  rarely consider the broader issues when ruling on motions for protective orders or motions to compel, and therefore leave many important questions unaddressed.  For instance, if a waiver, as that term is generally used in legal contexts, refers to a knowing and intentional act by a person holding a right, what acts can be properly considered to effectuate an implied waiver of a right?  How broad is the reach of an implied waiver?  Since privileges, almost by definition, generally protect otherwise relevant information, what role do questions of relevance, fairness, privacy and truth-seeking have in determinations of a waiver of a privilege?  And what impact could the "implied waiver" doctrine have on the decisions of potential civil rights/discrimination plaintiffs with mental health histories who are considering bringing actions in federal court to vindicate their rights?  I consider and attempt  to answer each of these questions in the article and I also suggest an alternative framework for courts to employ when facing controversies regarding the enforcement of the privilege."

-CM