New York's immediate need for a psychotherapist-patient privilege encompassing psychiatrists, psychologists, and social workers.

• Author: Auerbach, Rebecca S.

INTRODUCTION

Accused of strangling his girlfriend Gloria to death, Robert Wilkins testified at trial that his girlfriend had attacked him first, causing him to suffer visible slashes on his left wrist and on his abdomen. (1) Attempting to contradict Wilkins's allegations, the People sought to introduce the testimony of Dr. K.C. Sharma, a licensed psychologist, to reveal that Wilkins admitted to Dr. Sharma that such wounds were not the result of an attack by Gloria but instead were the remnants of a botched suicide attempt. (2) Significantly, the New York Court of Appeals deemed such testimony inadmissible solely because of Dr. Sharma's status as a psychologist. (3) Dismissing the Appellate Division's finding that the psychologist-patient privilege is "no broader" than the physician-patient privilege, (4) the court implied that had Wilkins spoken with a psychiatrist, rather than a psychologist, such testimony would have been admitted and the entire outcome of the case completely different. (5)

Increasing numbers of people are seeking treatment from physicians, psychologists and social workers for their mental health needs. (6) Arguably, patients expect a certain level of confidentiality when they seek out such services (7) and expect that such practitioners will not fully or even partially disclose any confidential communications. (8) Confusingly, New York has three separate evidentiary privileges for, respectively, physicians, psychologists and social workers (9) so that depending with whom the patient speaks, and what exactly is said, certain communications shared between a patient and a mental health provider may or may not be kept confidential. Limiting the patient's evidentiary privilege in such a manner is unjust, unfair and, arguably, discriminatory. New York must replace these three evidentiary privileges with a single psychotherapist-patient privilege.

This Note focuses on New York's treatment of the physician-patient privilege, the psychologist-patient privilege, and the social worker-patient privilege. While states such as Florida and California broadly define a psychotherapist to include psychologists, psychiatrists and social workers, (10) New York offers no such guidance. Instead, New York defines the practice of psychotherapy as "the treatment of mental, nervous, emotional, behavioral and addictive disorders, and ailments by the use of both verbal and behavioral methods of intervention in interpersonal relationships with the intent of assisting the persons to modify attitudes, thinking, affect, and behavior which are intellectually, socially and emotionally maladaptive." (11) Arguably, such a definition broadly applies to the services provided by psychologists, social workers, and certain physicians.

Regarding a psychotherapist-patient privilege, Justice Stevens of the U.S. Supreme Court wrote:

[I]f the purpose of the privilege is to be served, the participants in the confidential conversation "must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all." (12) Anything less than complete consistency and concrete guidelines does little more than distort the intended purposes of the privileges. (13)

Part I of this Note looks at the history and purpose of each privilege, while Part II explains three distinctions found amongst the evidentiary privileges. Part III examines options and alternatives to be considered by the legislature when creating a psychotherapist-patient privilege, including the U.S. Supreme Court's holding in Jaffee v. Redmond, other jurisdictions' efforts in the field of privileged communications, and various N.Y. Proposed Codes of Evidence. Finally, Part IV proposes that New York recognize a psychotherapist-patient privilege protecting a patient's privileged communications with psychiatrists, psychologists and social workers.

1. BACKGROUND

   1. Physician-Patient Privilege

      At the forefront of evidentiary privileges, New York codified a physician-patient privilege in 1828 when it declared that a physician may not "disclose any information which he may have acquired in attending any patient, in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for [such patient]...." (14) Applicable to pre-trial examinations, oral testimony, and certain documents, (15) the privilege seeks to protect communications shared between the patient and the physician. (16) While the physician-patient privilege purports to safeguard information obtained from the observation of a patient's appearance and symptoms, no protection is granted to such appearances, symptoms, or incidents of a person's medical history that would be obvious to a layman. (17) Significantly, although psychiatrists are primarily sought out as mental health professionals, New York continues to classify psychiatrists as physicians so that psychiatrists' evidentiary privileges are restricted to those shared by medical doctors concerned primarily with physical ailments. (18)

   2. Psychologist-Patient Privilege and Social Worker-Patient Privilege

      One hundred and twenty-eight years after the codification of the physician-patient privilege, New York recognized the practice of psychology as a separate and unique profession (19) and subsequently enacted an evidentiary privilege protecting communications shared between a psychologist and a patient. (20) Interestingly, the legislative memorandum of the State Education Department pertaining to the psychologist-patient privilege explicitly states "this bill has no application whatsoever to any licensed physician or psychiatrist. (21) As early as 1956, the legislature set forth laws wrongly distinguishing between the two fields of mental health practice. Less than ten years after enacting the psychologist-patient privilege, New York enacted an evidentiary privilege for licensed social workers. (22) Exemplifying what little concern was given to providing consistency amongst the privileges, the social worker-patient privilege seems little more than a messy mixture of the psychologist-patient and the physician-patient privileges. Similar to the physician-patient privilege, the social worker-patient privilege states simply that "[c]onfidential information [is] privileged;" communications shared between a social worker and the patient are not placed on the same level as an attorney-client relationship. (23) Analogous to the psychologist-patient privilege, only a social worker who is "certified" will be granted protection under the privilege. (24)

   3. Intended Purposes of the Evidentiary Privileges

      The existence of obvious distinctions amongst the three privileges is puzzling given their strikingly similar underlying purposes. In 1836, a New York Legislator stressed that unless communications between a physician and a patient remain privileged, patients may face "temptation to the perversion or concealment of truth, too strong for human resistance." (25) Nearly two hundred years later, the New York Court of Appeals listed three core objectives of the physician-patient privilege as (1) "[maximization of] unfettered patient communication with medical professionals;" (2) "candid... recording [of] confidential information" for medical professionals; and (3) protection of a "patients' reasonable privacy expectations against disclosure of sensitive personal information." (26) Certainly, such objectives can easily be applied to any of the three evidentiary privileges.

      Similar to the physician-patient privilege, the social worker patient privilege seeks to encourage the client to speak freely and without fear, (27) stressing that "uninhibited disclosure by the individual for the purpose of securing necessary assistance" is essential to the practice of a mental health professional. (28) Additionally, the American Psychological Association explains that effective treatment may be obstructed if clients fear disclosure of confidential communications. (29)

2. DISTINCTIONS BETWEEN THE PRIVILEGES

   1. The Psychologist and the Psychiatrist

      Historically, it makes little sense that the New York Legislature distinguished between psychology and psychiatry when enacting its evidentiary privileges. Because psychotherapy in the United States was originally practiced almost exclusively by psychiatrists, there was little need for rules governing other mental health professions. (30) In 1951, Governor Dewey vetoed a bill that would establish psychology as an independent profession, reasoning that the boundary "between psychology and psychiatry ... is ... difficult to recognize in practice." (31) In 1954, the American Medical Association, the American Psychiatric Association, and the American Psychoanalytic Association jointly declared "that only [a] 'psychiatrist[]' could carry out 'psychotherapy.'" (32) Confusingly, both the Message of Governor Averell Harriman and the Legislative Memorandum of the State Department of Mental Hygiene fail to explicitly mention why the American Psychiatric Association, only two years after its above declaration, joined the Commissioner of Mental Hygiene in approving a bill to recognize the profession of psychology (33) and afford psychologists separate privileges from psychiatrists. (34)

      Psychiatrists often treat emotional issues and mental disorders using similar techniques as psychologists. (35) In Jaffe v. Redmond, the Supreme Court insinuated that it is just as imperative for a psychiatrist to maintain confidentiality (in order to ensure open and free discussion by his patients) as it is for a psychologist. (36) The American Psychiatric Association, in its amicus brief for Jaffee v. Redmond, stated that there is "wide agreement that confidentiality is a sine qua non for successful psychiatric treatment"...